Following on from my previous blog where I briefly looked at the costs sanctions that the Court can impose when a party does not respond to an invitation to mediate, are there any steps that you can take to ‘gently’ persuade an opponent to mediate?
If you want to increase the chances of persuading your opponent to come to the negotiating table then you can apply to the Court for an ‘Ungley’ order (named after the judge who first conceived the order) as approved by the Court in Halsey v Milton Keynes NHS Trust  EWCA (Civ) 576.
Basically, the effect of an Ungley order is to force a party who considers a dispute to be unsuitable for resolution by ADR to justify that view at the conclusion of trial; the relevant party has to set out its reasons for refusing to mediate in the form of a witness statement which has to be filed no less than 28 days before the commencement of trial.
The problem with the ‘Ungley’ order, however, is that a party often takes the view that the dispute will settle before trial by some other means, however, to force an opponent to address the invitation to mediate immediately, you can apply to the Court for what in some quarters is being called a ‘Jordan’ order (named after the judge who is credited with using the order).
The main difference between the ‘Ungley’ and ‘Jordan’ orders is that in respect of the latter the witness statement from the party objecting to ADR has to be filed and served immediately and the proponent of mediation may file a witness statement in response shortly thereafter. The statements are then considered at the conclusion of trial on resolution of costs. If the party refusing to mediate fails to produce a witness statement then he is deemed to have objected for no good reason and adverse costs consequences will undoubtedly follow.
It may be the case that a party takes the view that the imposition of costs sanctions at some future date are commercially more preferable to participating in a mediation. However, the ‘Jordan’ order is a useful tool in the litigator’s armoury by which to focus the mind of the opponent who has thoughts of running a dispute to trial.
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