What about court cost orders against someone for refusing mediation?

This question seems to be very topical at the moment, in various areas of law and cases which end up in court, where one person has refused mediation.

If one party to the court proceedings wants to mediate and the other refuses, the judge may be asked to impose a cost penalty on the person who refuses mediation.

Would it be right to do so in any circumstances?

Principles of family mediation

This question goes to the heart of one of the key principles of mediation which is that mediation must be voluntary if it is to be called mediation and not some other process. 

In my view, people must not and cannot be compelled to mediate.

Having said this, is there some other way of ensuring that, before a court application is made, the person hoping to make a court application is obliged to assess and be assessed for the suitability of mediation.

If so, would it not make sense for an experienced mediator, who is also knowledgeable in the relevant area of law and skilled in the field of conflict management communication, to meet with each party to assess whether they and the circumstances are suitable for mediation?

Let’s call it a mediation information and assessment meeting.

MIAM in person or online

During this meeting, the mediator will, among other things, take time to ensure that each person leaves with a clear understanding of what mediation involves, including the advantages and, of course disadvantages.

The mediator would also assess each person’s commitment, capacity and competence for mediation and, if necessary, begin to prepare them for the process.

Each party would then be left with sufficient information and understanding to make an informed decision about their process options, before marching off to court.

In my experience this is likely to leave them feeling more accountable and feeling more obliged to give mediation a go.

Doesn’t this make sense?

This does not of course mean that mediation itself should be compulsory.

I am only suggesting that attending a mediation information and assessment meeting could be compulsory in a variety of legal areas, before the parties can apply to court and that they should be held accountable, in some way, for refusing to attend such a meeting and using up court resources (public money).

Making a choice for your separation or divorce

This is certainly what happens, or at least should happen, in family law although even here it transpires that many people appear to be bypassing the requirement to attend an initial pre-mediation assessment meeting, in their eagerness to exert their position in court and seek ‘justice’, without accountability.

In conclusion, I believe that it would be reasonable, in most cases, to ask a judge to consider a costs order against someone who refuses to attend a mediation information and assessment meeting with the mediator, before going to court, whether it is a civil matter or a family law matter, where a mediator has assessed everyone and the circumstances as suitable for mediation.

Finally, there will always of course be exceptions and situations which are clearly and obviously unsuitable for mediation.

Whether all this would do anything significant to dampen the deep rooted drive, in this country to go to court, and reduce the number of people going to court, remains to be seen but it is worth a go !