At present the MOJ is looking at whether mediation should be made mandatory in civil cases. In the meantime the current court rules provide that when it comes to who pays the legal costs of a case the judge can consider the conduct of a party. This includes whether any party has unreasonably refused to use mediation.
In a recent case of:
European Real Estate Debt Fund (Cayman) Ltd v Treon & Ors [2021] EWHC 2866 (Ch)
(https://www.bailii.org/ew/cases/EWHC/Ch/2021/3514.html) the judge found that neither party has made enough effort to propose mediation and so he did not consider that there had been any unreasonable conduct in this regard. He said that:
The defendants’ complaints about ADR are capable of cutting both ways. Either party to litigation may propose and press for ADR, and it does not seem to me that either party made any sustained effort for there to be an alternative dispute resolution process in this case. It seems to me that that is a factor of relatively little weight.
The lesson to take from this is that to succeed in such an argument you may need to put forward mediation with some effort rather than a half hearted suggestion. Otherwise the Court may disregard the offer.
For advice on this or to book a mediator please get in touch.