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Encouraging Mediation: Unlocking the Potential of Exceptional Circumstances in Fixed Recoverable Costs


In the realm of legal proceedings, finding ways to encourage parties to mediate disputes is essential for efficient resolution. The Civil Procedure Rules (CPR) 45.9 provides a unique avenue through which exceptional circumstances can be invoked to address costs exceeding fixed recoverable costs (FRC). However, the absence of a clear definition for exceptional circumstances and the potential pitfalls involved in the assessment process pose challenges. This article explores the significance of encouraging mediation within the framework of CPR 45.9, delving into the need for a broader interpretation of exceptional circumstances and the benefits of mediating disputes.

Defining Exceptional Circumstances

One of the primary hurdles in utilizing CPR 45.9 lies in the lack of a precise definition of ‘exceptional circumstances.’ While this ambiguity can be daunting, it also provides room for interpretation. An unreasonable refusal to mediate, a factor already recognized in some cases, could potentially be considered an exceptional circumstance. By expanding the scope of what constitutes exceptional circumstances, the court could encourage parties to explore mediation as a viable alternative.

The Sting in the Tail: Assessing Costs

A significant deterrent to parties considering mediation is the risk associated with costs assessment. The rule stipulates that if the assessed costs are marginally (less than 20%) higher than FRC, the party receives only the fixed recoverable costs. This ‘sting in the tail’ discourages parties from attempting mediation, fearing they might end up with similar costs but a longer, more complicated process. To promote mediation, it is crucial to revisit this aspect and provide incentives that genuinely reflect the benefits of resolving disputes through mediation.

Unreasonable Refusal to Mediate: A Key Factor

Considering the existing penalties for an unreasonable refusal to mediate, it is logical to integrate this factor into the realm of exceptional circumstances. Mediation, as an alternative dispute resolution method, encourages cooperation, communication, and compromise, aligning with the principles of the CPR. Therefore, parties unreasonably refusing to mediate could be viewed as exceptional circumstances, warranting an adjustment in costs.

Utilizing Mediation Panels

Institutions often maintain panels of skilled mediators. Integrating these panels into the legal process can streamline the mediation procedure, ensuring parties have access to qualified mediators promptly. By promoting these panels and highlighting their effectiveness, parties might be more inclined to engage in mediation, knowing they have the support of experienced professionals.


Encouraging mediation within the framework of CPR 45.9 is pivotal for fostering a legal environment centered on resolution and cooperation. By broadening the definition of exceptional circumstances to include unreasonable refusal to mediate and revisiting the costs assessment process, the legal system can empower parties to explore mediation confidently. Additionally, leveraging established mediation panels enhances accessibility and effectiveness, further promoting the use of mediation as a viable solution. Embracing these strategies can revolutionize the way disputes are resolved, making mediation a cornerstone of the legal process.