The Costs Risk Of Late Mediation

Last Friday the Technology and Construction Court decided a novel point. It held that a successful party in litigation might not recover some of its costs simply for delaying mediation. To date the cases have focused on punishing successful parties who have failed to engage in mediation at all (for examples click here, here and here). This latest case pushes parties not just to mediate but also to mediate as soon as the time is right.

The judge said that a successful party might suffer an adverse costs order "in an exceptional case ... where there was a mediation but very late when its chances of success were very poor and ... if it could be shown that the successful party unreasonably delayed in consenting to the mediation". However, no such order was made in the present case because: