Costs Mediation is a hot topic, and there is a real question mark over the benefits of it when it comes to costs disputes. I have dealt with costs for over 20 years, and recently attended my first costs mediation, and thought it wise to think about the pros and the cons.
By way of a quick summary, the case was an unlitigated clinical negligence case, where causation was hotly disputed, and the case settled for £500,000 including CRU payments. The Bill of Costs was circa £180,000.
Ultimately we were able to reach a settlement at the mediation, so that is a huge positive. We saved the costs of any detailed assessment, however, each party bore their own costs of the mediation (agreed prior to the mediation, with the Paying Party paying the mediator), so whilst we saved any further detailed assessment costs from being incurred, the costs for the Solicitor and I attending were not paid by the Paying Party.
The mediation itself took a lot longer than I thought. The thinking was that it would be about 3 hours, when in fact it took around 5 hours. It felt like being on a public bus, in that we went round the houses, but ultimately got to where we wanted to be.
The mediator was excellent, and for me, this is one of the key benefits of the mediation. We considered matters as if it was a detailed assessment, obtained insight and had good discussions regarding the recoverability of certain aspects of the costs claim.
A frustration was that had the Paying Party looked at the figures properly (in my opinion!), then this case could have settled prior to the mediation, and saved the costs. Had they looked and thought they’d factor in a further X amount on the Bill and Y for the mediator, and added X + Y to their “best” offer, then the reality is that the case would have settled. Perhaps, the mediator was able to convince them to increase, perhaps our counter arguments helped, perhaps they were calling our bluff to try and get us to under settle, or perhaps they wanted to tick a box to show that they want to mediate, and then reach a settlement.
Overall, I have mixed feelings. It was great to achieve a settlement, but does it encourage Paying Parties to make lower offers, as they know a mediation will be offered, and if turned down, then it will be brought up at any assessment hearing? Surely if the Receiving Party is happy with their position then they should not be frowned upon for not attending a mediation, as after all, litigation is often a tactical process. But, if it makes parties think about costs, and the costs of the costs, then it certainly has it’s place in some cases, I’m just not sure it needs to be in every case.
It will be interesting to see where things go with costs mediation, and we’ll be keeping a keen eye on developments.
For any further information regarding mediation in costs, or to provide your experiences or ask any questions, please do not hesitate to contact the writer, Tom Brocklebank, here.
