Monday, September 22

Dunnett, Halsey and a guy called Milton

Stephen Cantle from Kennedys last week posted an interesting take on the UK line of cases that sees the court encouraging parties to mediate because of the threat of costs penalty if they decline - even where they eventually win at trial.

He concludes that when you look at what cases such as Dunnett – and the later Court of Appeal decision in Halsey v Milton Keynes NHS Trust 2004 – have actually achieved in practice, the answer is depressing.

'Recently, I was involved in mediation where the only benefit was to increase the costs. During the course of a frustrating day, it became clear that our opponents would only settle at maximum value. Although this was not a novel experience, I started thinking about the usefulness of judicial warnings of the consequences of a refusal to mediate.

Why do people agree to mediate if they have no intention of reaching a compromise? The short answer is they know that a refusal to mediate may well result in their being penalised in costs, even if they are subsequently successful at trial'[read more]

For context read; Dunnett lives on - first thoughts on Halsey v Milton Keynes NHS


Stephen said...

As more time goes by, I see fewer and fewer instances of people wasting time in mediation, the process eventually educates them.

Chris Annunziata said...


I have been working on a post regarding good faith requirements and so-called "incentives" to mediate. I will definitely read Halsey v Milton Keynes NHS Trust 2004.

The recent appeal from the "Girls Gone Wild" case shows the potential pitfalls of such good faith rules and judicial "incentives" over here in the US.

I hope to have the piece finished sometime this .... well ... year.