Mediation is a voluntary process and usually comes about when one party proposes it to the other side. Increasingly the courts encourage it by including a standard direction into case management orders such as paragraph A03-ADR which reads:
At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation); any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.
The party proposing mediation may at the same time nominate one or more suitable mediators or nominate a mediation organisation such as Trust Mediation to appoint a mediator.
The mediator is selected by agreement between the parties just like a joint expert would be.
A party that unreasonably refuses to agree to mediate may be penalised in costs at the end of the claim.
Download our digest of costs penalties cases on refusing to mediate.
Download a template letter for proposing mediation to the other side.