The Courts encourage parties to resolve a dispute through
Alternative Dispute Resolution (ADR) such as Mediation. Mediation
is a confidential and flexible process where parties are assisted
by an independent mediation to seek to reach an amicable resolution
with 60-85% settling.
If one party fails to engage in ADR, in particular Mediation,
this may be considered as unreasonable conduct resulting in the
Court ordering costs sanction against the other party.
In PGF II SA v. OMFS Company 1 Ltd, the Court held that
silence in response to an invitation to ADR is highly likely to be
considered unreasonable and a refusal to mediate even if reasonable
grounds to refuse existed. In Thakkar v Another v Patel
& Another, the Court suggested that “foot
dragging” could also constitute refusal.
