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ARTICLE · 19 MAY 2009

Determined To Make The Horse Drink

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At least one justice of the English Court of Queen's Bench seems determined to prove incorrect the old adage 'you can lead a horse to water but you can't make it drink.'

CanadaLitigation, Mediation & Arbitration
Barry Leon
Barry Leon
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Originally appeared in the International Bar Association's Mediation newsletter, vol. 5, no. 1, April 2009.

At least one justice of the English Court of Queen's Bench seems determined to prove incorrect the old adage 'you can lead a horse to water but you can't make it drink.'

The decision in James Carleton Seventh Earl of Malmesbury and others v. Strutt and Parker, [2008] EWHC 424 (QB), was outlined by Joe Tirado and Rebecca Wright in the September 2008 IBA Mediation Newsletter (vol. 4, no. 1, "Costs and mediation in the English courts," page 29). The Court held that a party's position in mediation was 'plainly unrealistic and unreasonable'. Apparently the Court equated taking an unreasonable position in mediation that causes the mediation to fail with unreasonably refusing to mediate in the first place. The Court held that taking an unreasonable position, like unreasonably refusing to mediate, will attract cost consequences.

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