Determined To Make The Horse Drink

Originally appeared in the International Bar Association's

Mediation newsletter, vol. 5, no. 1, April 2009.

At least one justice of the English Court of Queen's Bench

seems determined to prove incorrect the old adage 'you can lead

a horse to water but you can't make it drink.'

The decision in James Carleton Seventh Earl of Malmesbury

and others v. Strutt and Parker, [2008] EWHC 424 (QB), was

outlined by Joe Tirado and Rebecca Wright in the September 2008

IBA Mediation Newsletter (vol. 4, no. 1, "Costs and

mediation in the English courts," page 29). The Court held

that a party's position in mediation was 'plainly

unrealistic and unreasonable'. Apparently the Court equated

taking an unreasonable position in mediation that causes the

mediation to fail with unreasonably refusing to mediate in the

first place. The Court held that taking an unreasonable position,

like unreasonably refusing to mediate, will attract cost

consequences.

I believe in mediation. I believe that almost every case can and

should be mediated at some stage. I am not opposed to mandatory

mediation – that is, requiring parties that are engaged

in court litigation to mediate. I do not consider mandatory

mediation in a publicly funded court system an...