COURT COMPELS MEDIATION IN GROUND-BREAKING CASE.

In the case of DKH Retail Ltd and others v City Football Group Ltd  [2024] EWHC 3231 (Ch) the Court concluded that it had the power under CPR 3.1(2) (p) to conduct and require a mediation and not merely an early neutral evaluation.

This follows a line of earlier cases, although it appears to be significant in being the first time that the Court has compelled mediation.

There is an understandable appeal in some cases for compulsory mediation, although the difficulty with this approach is that a meaningful mediation requires the parties to act in good faith and have a genuine desire to compromise.  It would be easy for a party to merely go through the motions without making any concessions.  This would inevitably result in the time and cost of the meditation being wasted.

For an ordinary mediation not conducted by the Court, the following observations may be useful to a party who is not experienced with mediation:

1.      The process is informal and there are not set rules.  Different mediators will adopt different procedures.

2.      The process is voluntary and can be ended by either party, at any time.

3.      There will usually be a joint session with all parties and their representatives in the same room, briefly setting out their position.

4.      The mediator will oscillate between the parties, discussing the case, raising queries and trying to elicit settlement offers.

5.      It is not sensible to put forward your best offer at the start.  On the other hand, mediations often failure where parties make unrealistic offers or do not make any offers until the afternoon.  This often means that there is a gap that is too large to bridge within the allotted day.

6.      The cost of a mediation is significant, with the mediator and the parties representatives being paid, but it can pale in comparison to the costs of a trial.