The recent case of Haiss v Ball  EWHC 74 is causing a stir. For mediators it shows how both sides can lose on costs when a case goes to court – the defendant lost on liability and had to pay damages and interest; the claimant lost on costs because he failed to beat the defendant’s Part 36 offer. For litigators trying to advise their clients it poses more of a problem. Against the recent trend of decisions on costs the judge did not penalise the defendant for refusing mediation. His rationale is worth reading:
“I don’t think that Mr. Ball’s refusal to enter into mediation should count against him. I can see that from Mr. Ball’s perspective this would be likely to have led to a waste of time and expenditure. Bearing in mind Mr. Haiss’s stance with regard to the sum he felt was due by way of damages, I doubt that mediation would have been successful.”
However you view this decision, I think I could place a sizeable bet on it being wheeled out on a regular basis as a justification for parties refusing mediation in the future.