DO YOU HAVE TO MEDIATE?

DO YOU HAVE TO MEDIATE?

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

13 April 2021

COMMENT OF THE DAY #55 – EPISODE 2

MEDIATION

The court wants you to mediate because many disputes do not need to go down the path of confrontation. Some are made for mediation + some will never mediate. But the court requires you, at least, to try to meditate. So try!

In our case, Party A makes an offer that Party B thinks is derisory. Is Party A at risk of costs for failing to make what Party B considers would be a serious offer? What if Party A has merely agreed to mediation because the mediator urged Party A to make an offer to settle. The offer fell far short of what Party B believed was reasonable but Party A did believe it was reasonable. Is the Judge going to penalise Party A for the small nature of his offer?

Not Necessarily. Party A may not hold out much hope of a negotiated settlement but he may have good reason to hold that view. To protect him/herself Party A needs to make clear in a letter to Party B, which will be read by the Judge, the reasons why the so-called “derisory” offer was reasonable in all the circumstances. Also, Party A does need to participate in the mediation. He cannot sulk. He needs to give reasons for his pessimistic view.

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