The consequences of refusing to attend mediation

29 September, 2014
by: Cripps Pemberton Greenish

The recent case of H v W has stirred things up a bit in relation to the cost consequences of a party’s refusal to engage in court directed mediation. In this case, the husband successfully appealed against a final order with his ex-wife and has been awarded his legal costs. The District Judge had awarded wife spousal maintenance together with 25% of the husband’s annual bonus, both on a ‘joint lives’ basis, i.e. until one party dies or remarries, or a further order of the court is made.

The husband appealed and the judge gave permission for an appeal hearing in relation to his bonus, giving an indication that there should be a cap on the amount of the bonus share. The judge also directed that the parties engage in mediation in order to try and resolve matters amicably. The husband offered to pay the costs of mediation, but the couple could not agree on a mediator to conduct the session. The wife also wanted her legal representatives to be present at the mediation sessions.

The wife then unsuccessfully applied for a legal costs order which would oblige the husband to pay her costs. The judge refused her application on the grounds of the wife’s unreasonable approach and her insistence on using a top priced mediator and that her legal representatives be present. The judge explained that this was neither necessary nor reasonable in his experience, would be unusual and arguably unhelpful. The judge again advised the couple to engage in mediation.

The couple did not attend mediation and the husband’s appeal proceeded to a final hearing. The husband’s appeal was successful and the judge set a cap on the bonus to £20,000 per annum.

However, in the course of these proceedings, both the husband and wife had incurred substantial legal costs. The husband’s costs were £22,320 and the wife’s were £25,371. The wife had been advised that she faced an order requiring her to pay the husband’s legal costs as result of her unreasonable approach to mediation. The judge approved this order.

The case clearly shows the importance of being agreeable to attending mediation. If the court directs you to go, and there’s no justifiable reason not to, then you should take this direction seriously and attend. It is important to remember however, that it is your right to have your solicitor present at mediation, and in some circumstances, this may actually be appropriate.However this case once again highlights the importance of parties attending mediation to avoid the cost and time involved in formal proceedings.