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Risks And Cost Implications
Risk Of Failing To Mediate
Both the Government and the Courts have been determined to promote Mediation as a prime form of dispute resolution.
The Civil Procedure Rules, the Commercial Court Guide, the Queen’s Bench and Chancery Division Guides, and the various Pre-Action Protocols have all sought to encourage parties and prospective litigants to consider ADR as early as possible in their disputes.
The Courts, however, have increasingly adopted the ‘stick’ rather than the ‘carrot’. In 2002, Lord Justice Brooke created a significant precedent when the Court of Appeal disallowed Railtrack PLC their costs notwithstanding that they had been successful on appeal: Dunnett v Railtrack PLC [2002] 2 All ER 850, CA.
More recently, In Halsey v Milton Keynes General NHS Trust[2004] 1 WLR 3002, the Court of Appeal stated:
"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. The Court of Appeal indicated that the courts would be robust in their encouragement, and parties will now face significant adverse costs consequences if they unreasonably refuse to consider mediation."
Costs implications
Fees are very flexible but see the fees page for some guidance as to fees.
See also risks of failing to mediate for the possible costs implications of failing to participate in a mediation proposal.
Is Legal Aid Available For Mediation?
Mediators are entitled to have their reasonable fees paid for as a disbursement under Legal Help funding.
The following is an extract from the Legal Services Funding Code Manual Funding Code Guidance R11:December 2003 ADR 84:-
7.7 Supporting Non-Family Mediation
The Commission supports the wider use of mediation to resolve disputes.
Non-family mediation may be funded as a disbursement under Legal Help, Legal Representation or Support Funding.
No prior authority is necessary to mediate a non-family dispute but, like all other fees, the cost of mediating must be reasonable in all the circumstances.
Therefore mediation should only be funded where it appears to be the most cost-effective way of proceeding and where the fees of the mediator are reasonable in all the circumstances. The Commission will give further guidance as to remuneration for mediators in due course but, as a general starting point, non-family mediators will need to justify any rates in excess of prescribed basic remuneration rates for lawyers providing county court advocacy under certificates for Legal Representation.
It is also important that only properly trained mediators are funded under the CLS. There are at present no national agreed quality standards for non-family mediation, although a new standard within the Quality Mark is due to be introduced for Community Mediators during 2001. Pending further developments, mediators trained or accredited by any of the following bodies will for the time being be regarded as suitably qualified and capable of being funded under certificates:
(a) CEDR (Centre for Dispute Resolution);
(b) ADR Group;
(c) Mediation UK;
(d) The Academy of Experts;
(e) The School of Psychotherapy and Counselling Regent’s College (SPC)
Mediators trained by other bodies may still qualify for funding but will need to satisfy the Commission that they have appropriate training and expertise.
For a full copy of the Legal Services Funding Code Manual, see: http://www.legalservices.gov.uk/docs/stat_and_guidance/funding_code_guidance_r11.pdf