My colleague Toby Gee, a barrister at Crown Office Chambers in London, has kindly provided me with a recent UK decision that has something to say on the costs and timing of mediation.
The case is another in the line of cases, Halsey and Dunnett v Railtrack Plc, and said that a premature mediation simply wasted every body’s time and could sometimes lead to a hardening of positions on both sides, which made any subsequent attempt at settlement doomed to fail.
Conversely, a delay in any mediation until after full particulars and documents had been exchanged could mean that the costs that had been incurred to get to that point became themselves the principal obstacle to a successful mediation.
The wise old Judge found that the trick in many cases was to identify the happy medium: the point when the detail of the claim and the response were known to both sides, but before the costs that had been incurred in reaching that stage were so great that a settlement was no longer possible.
Toby’s chambers, by the way, are the largest civil common law set in London and provide wonderful mediation facilities as well as having a team of accredited mediators including Toby, amongst the inmates. Crown Office Chambers barrister, Sue Lindsay, was one of the counsel in the Witham case.
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