Both the Government and the Courts have been determined to promote Mediation as a prime form of dispute resolution.

The Civil Procedure Rules, the Commercial Court Guide, the Queen’s Bench and Chancery Division Guides, and the various Pre-Action Protocols have all sought to encourage parties and prospective litigants to consider ADR as early as possible in their disputes.

The Courts, however, have increasingly adopted the ‘stick’ rather than the ‘carrot’. In 2002, Lord Justice Brooke created a significant precedent when the Court of Appeal disallowed Railtrack PLC their costs notwithstanding that they had been successful on appeal: Dunnett v Railtrack PLC [2002] 2 All ER 850, CA.

In 2004, in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, the Court of Appeal stated:

"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. The Court of Appeal indicated that the courts would be robust in their encouragement, and parties will now face significant adverse costs consequences if they unreasonably refuse to consider mediation."

See also:

Sanjay Kantilal Shah & Anor v Anupma Anil Joshi (2008) Where claimants were successful on their claim and counterclaim, and all the willingness to try to settle the matter had come from them and not the defendant, justice required that there be an order for the recovery of part of their costs on an indemnity basis. [2008] EWHC 1766 (ChD - John Randall QC) 18/6/2008

James Carleton, Seventh Earl of Malmesbury and ors v Strutt & Parker (A Partnership) (2008) A party who agreed to mediation but then took an unreasonable position in the mediation was in the same position as a party who unreasonably refused to mediate. [2008] EWHC 424 (QBD - Jack J) 18/3/2008
References: LTL 31/3/2008 : 118 Con LR 68

Paul Sheridan Finster v Arriva London and anor (2007) In the circumstances, a costs bill of £54,000 in relation to a road traffic claim was globally disproportionate, particularly where the claim was settled for only £10,000 and the case was not novel or complex demanding particular special skills. The equivalent to the reasonable costs of a one-day liability trial would be allowed in respect of the trial costs because liability issues could have been disposed of by mediation in a day. Sup Ct Costs Office (Deputy Master Victoria Williams) 31/1/2007
References: LTL 21/2/2007 (Unreported elsewhere) Document No.: Case Law - AC0112766

P4 Ltd v United Integrated Solutions PLC (2006) Where the defendant in litigation had refused to mediate and the claimant had failed to beat a CPR Part 36 payment into court, it was just to award the claimant its costs up until the time of the Part 36 payment and the defendant its costs after that date. [2006] EWHC 2924 (QBD TCC - Ramsey J) 17/11/2006
References: LTL 29/10/2007 : (2007) BLR 1 : (2007) CILL 2422 Document No.: Case Law - AC0112597

Rodney Charles Skinner v Personal Representatives of Ian Smythe (decd) and anor (2006) The court made no order for costs against a claimant who had continued a personal injury action against a defendant director after a co-defendant limited company had conceded liability, in circumstances where there were concerns about the defendants' ability to pay and where they had refused to mediate. CC (Exeter) (District Judge Harvey) 16/11/2006
References: LTL 22/12/2006 (Unreported elsewhere) Document No.: Case Law - AC0112330

Royal Bank of Canada v Sec of State for Defence (2003) Where a claimant had indicated a willingness to mediate a claim for costs and the defendant had refused, the defendant had not abided by a formal pledge given on behalf of all government departments to settle by alternative dispute resolution wherever possible and was not entitled to costs. [2003] EWHC 1841 (ChD 14/5/2003)
References: LTL 8/8/2003 (Unreported elsewhere) Document No.: Case Law - AC0105642

Malkins Nominees v Societe Finance (2002) The successful claimant was only awarded a proportion of its costs, in accordance with the proportionality principles of the Civil Procedure Rules 1998 SI 1998/3132, because of its rejection of a genuine offer to resolve the matter by alternative dispute resolution. [2002] EWHC 1221 (ChD - Etherton J) 29/5/2002
References: LTL 22/1/2003 Document No.: Case Law - AC0104348