Further very good reasons to mediate.

Costs sanctions are likely to be imposed by the court faced with a refusal to mediate.

Turners were the Claimant's solicitors in the reported case of Burchell v Bullard. The case involved a small building claim and the builder sought advice from Turners. Sally Carmichael was the conducting Solicitor who at the time was a Partner with Turners. Sally is now a self employed Consultant working with Turners. The builder sued for fees due in respect of work done and, as usual, the case was defended on the basis of complaint by the owner as to the quality of work. A large number of small defects were raised by the Defendants. Before issuing proceedings Sally had advised her clients to offer mediation to resolve the case. Such offer was rejected out of hand by the Defendants. The Court found that the Defendant was wrong to reject mediation. The case was taken to the court of appeal on the matter of costs.

On hearing the appeal Lord Justice Ward was reluctant to penalise the Bullards on costs because their refusal to mediate pre-dated major cases on the subject. However Lord Justice Ward stated that “a small building dispute is par excellence the kind of dispute which … lends itself to ADR

Lord Justice Ward made it clear that in future, defendants “can expect little sympathy if they blithely battle on regardless of the alternatives”. He said:
“Mediation has established its importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees escalating it may be folly to do so.”
Burchell v Bullard [2005] EWCA Civ 358