This article looks at whether it is better to make a part 36 offer or mediate. Of course it is possible to do both. A part 36 offer is a formal offer to settle a case which, if beaten at trial, can have costs consequences. Once made, a part 36 offer can be accepted within 21 days bringing a case to a close, or out of time as long as the Court gives permission.
The problem is that Part 36 offers are inflexible and formal. Yes, further offers can be made and an offer can be withdrawn, but there can be arguments about whether an offer is a genuine attempt to settle or constitutes a proper binding part 36 offer.
We always recommend mediation as a better way of negotiating than using the rules of the Court like Part 36 which can be a blunt instrument.
In a recent inheritance case there was a dispute about the validity of an offer which was made – many thanks to Gordon Exall’s litigation brief for pointing this case out below.
As a result of an argument about the offer and whether it had been beaten the parties had to incur further costs which could have been avoided. If the parties had negotiated in a mediation, maybe those costs and the costs of the trial could have been avoided?