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Costs sanction - duty to mitigate costs by mediating at an early stage? - There may be such a duty but on the facts of this case, there was no such duty and no reduction in costs was ordered. The discussion is set out at some length in the decision.
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Encouragement to mediate - judicial review
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Costs Sanction - Mr Justice Turner applied the tests in Halsey in circumstances where the defendant failed, without adequate (or adequately articulated) justification to engage in ADR which had a reasonable prospect of success. A costs deduction was applied.
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Encouragement to mediate - Mr Justice Norris gave very strong indications (not orders) that in a neighbour dispute such as this one about gates, a court could not order mediation but could not be criticised for imposing a 2 month stay for mediation and directing that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process).
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Costs Sanction - not applied - in circumstances where there was an unreasonable refusal to mediate but that was not the only consideration - there had been a without prejudice save as to costs offer that had to be balanced against the unreasonable refusal
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Privilege - without prejudice negotiations - Canadian law - can a Canadian court look at negotiations in a mediation to see whether there was a concluded settlement? Common law privilege can be excluded by clear drafting in the mediation agreement. For a discussion, please download Mediation Update June 2014 >>
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Costs Sanction - unreasonable refusal to mediate results in costs sanction - indemnity costs ordered.
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Costs Sanction - failure to reply to invitations to mediate will, as a general rule, of itself be unreasonable - decision at first instance (see January 2012) was upheld
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Settlement Agreement - solicitor had no duty to ensure that the mediation ended in an immediate binding agreement (as opposed to one which was subject to further negotiation and perfection at a later date) - the mediation process needs maximum flexibility.
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