Costs sanctions against parties refusing to mediate

This Journal has faithfully followed the developing debate regarding courts making costs orders against parties who deliberately set out to frustrate mediation.1 A recent decision heard in the England and Wales Court of Appeal, puts parties and their lawyers on notice that only in exceptional circumstances will costs not follow the cause where the successful party has failed to participate in mediation. Further, the decision provides an insight into the factors considered by the court when deciding the issue of costs and sheds light on the burden of proof in such cases. It is only a matter of time before an Australian court is asked to consider the same issue.