December-02-2015 in Healthcare Law, Litigation & Dispute Resolution
In a recent case[1] the Court of Appeal was asked to consider whether a High Court order compelling parties to mediate a personal injuries action should be upheld. The order had been made under Section 15 of the Civil Liability and Courts Act 2004 which confers jurisdiction on the High Court in personal injuries actions to order parties to mediate their differences. The order was appealed by the defendant who argued that mediation would add an unnecessary layer of costs and in support of this premise placed reliance on various factors militating against mediation being successful including that the plaintiff had not delivered a Schedule of Special Damages or a Witness Schedule, no settlement meeting had taken place and there was no agreement as to who should bear the costs of mediation.
The Court of Appeal set aside the High Court order compelling mediation and in doing so made some interesting observations including that:
- Care should be taken so as to ensure that when ordering mediation, the court is satisfied that the process will in fact assist the parties in reaching settlement. Settlement will not be assisted if the circumstances dictate that there is little prospect of a successful outcome and a likelihood that all that will be achieved is the addition of a further layer of delay and costs to the proceedings.
- In considering whether mediation would assist in resolving the case, the court is entitled to bear in mind the poorer chance of success in a mediation which is not undertaken on a voluntary basis.
- The court should be slow to invoke a compulsory mediation procedure where the parties themselves have not attempted to settle the case themselves in the normal way.
- Little is achieved by way of resolution or saved by way of costs if mediation is sought at too late a stage in the proceedings. In this case Notice of Trial had been served and the action was ready to be allocated a hearing date.
The decision highlights the importance of seeking mediation as soon as is appropriate and endeavouring to ensure insofar as is possible that there is willing participation in the process by all parties. The Plaintiff in this case had not furnished details of special damages or a Schedule of Witnesses and a critical aid to reaching agreement is the exchange of relevant information in advance including full particulars of any claim for special damages and, where appropriate, expert evidence for both sides.
It has been our experience that if mediation is availed of at an early stage in cases where the issues have been clearly defined in advance and there is active participation in the mediation process by all parties, the chances of a successful and sustainable outcome are optimised.
[1] Ryan v Walls Construction Limited (2015) IECA 214 (Kelly J, Irvine J, Hogan J)
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