When will courts waive the without prejudice rule for mediation? Chloe Carswell reports
The courts have wholeheartedly embraced mediation since it was enshrined in the Civil Procedure Rules in 1999. Case law including Dunnett v Railtrack plc (in railway administration) [2002] EWCA Civ 303, [2002] 2 All ER 850 and Burchell v Bullard [2005] EWCA Civ 358, [2005] All ER (D) 62 (Apr) demonstrates that the courts will not hesitate to apply costs sanctions to parties who unreasonably refuse to mediate.
The benefits of mediation are clear. It is a flexible process with a neutral third party who tries to facilitate a settlement of the dispute. It is a (relatively) cheap and swift method of dispute resolution which allows for creative solutions not otherwise available through the courts, and which allows for quasi-direct negotiation between parties. Perhaps most importantly, it is confidential, without prejudice and non-binding—unless and until there is a signed settlement agreement.
A FORM OF PRIVILEGE
The “without prejudice” rule exists to encourage parties to reach a settlement of a dispute without fear of anything said during the course of settlement discussion—particularly concessions
