In a rare move, the Court of Appeal has stepped into the shoes of the trial judge and exercised the court’s discretion on costs, holding that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis: Swain Mason v Mills & Reeve (a firm) [2012] EWCA Civ 498.
The decision illustrates that a refusal to mediate may, in some circumstances, be justified. It is however a high-risk strategy, as an unreasonable refusal to mediate can carry significant costs penalties. Parties should not take such a decision lightly.
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