However, these cases all resulted in the parties achieving settlement the second time around. Contributing factors to settlement were a better understanding of the case, prospects of success and risk, as well as (no doubt) the fact that the attrition of litigation had taken its toll and the parties were ready to move on.

A key focus for me as mediator was to seek to ensure that the focus was on the future and try to put aside the baggage of the past (which of course included the previous failed attempt to settle).

Under the new rules will parties be absolved from trying again when bringing the failed attempt to the attention of the Court at a case management conference? The answer is – not necessarily. Prior to the rule changes the Courts have already recognised that further attempts at mediation can be beneficial.

In FRANCIS v PEARSON (2024) EWHC 605 (KB), the judge said as follows:

 

“87. I can see that the parties have already attempted mediation.

88. Experience shows that it is often in entrenched cases such as this that ADR can make a real difference, often requiring honest conversations with parties as to the merits of their respective cases, and the potential downsides, as well as looking at pragmatic ways forward.

89. As part of the process, mediators might also see the parties together, without their lawyers, to try and explore ways forward.

90. In a case such as this, it might also be possible for agreement to be reached on ancillary matters that help the parties move forward, but which the court may not have the power to order at trial.

91. The parties need to reflect on the reasons why the case did not settle at mediation, and the costs of continuing this litigation – not just in terms of money, but the personal costs to each party for example from the time and energy spent fighting, the stress and worry the proceedings might cause, particularly in respect of outcomes, and the impact that it is going to have on the wider community in which they live.

92. I would strongly recommend that the parties re-consider some form of alternative dispute resolution process – which might include further mediation, or some other way of facilitating agreement – before matters in this case move forward and further costs are incurred.”

Further, in HEYES v HOLT (2024) EWHC 779 (Ch) the judge said:

“This is a case which cries out for mediation by the parties. I am aware that mediation has already been attempted between the parties…, and on that occasion it failed. I commend them nevertheless for trying. But that was before the claim had even been issued. Now that the parties have full pleadings and disclosure, as well as (for what it may be worth) this judgment, the parties should try again. I will order a stay for that purpose.”

The latter case speaks to what can be a common reason for some cases failing to settle at mediation – the issue of timing and whether the parties have sufficient information to understand the strength and weakness of their respective cases. That is sometimes required as it informs negotiating positions and each party taking an overly robust view of their own positions can lead to deadlock.

That is not to say that such a level of information is always required before mediation however – many cases settle at an early stage following exchange of information in pre-action correspondence, exchange of key documents and position statements.

It is still early days to see how the new rule changes are being applied by the judiciary – and to what extent judges are likely to compel parties to ‘try again’ when there has been an unsuccessful mediation previously.

The key message is that a further attempt can pay dividends.