Mediation ultimatum

The Court of Appeal has denied a costs award to a winning party which refused to consider mediation, in a major endorsement of Lord Woolf's recent exhortation to solicitors to mediate more and litigate less.In Dunnett v Railtrack plc (in administration), a claimant appealed against an original finding against him in his quest to obtain damages for negligence from Railtrack.At the hearing at which the right to appeal was granted, the court told both parties that they should attempt alternative dispute resolution (ADR), but Railtrack refused to do so.The matter went to a substantive hearing, where the claimant's appeal was dismissed - but despite winning, Railtrack received no costs award.The appeal judges held: 'Parties and their lawyers should ensure that they are aware that it is one of their duties fully to consider ADR, especially when the court has suggested it, and not merely to flatly turn it down.

To flatly turn down ADR, could place the party doing so at risk of adverse consequences in costs.'The case comes in the wake of Lord Woolf's pronouncement that 'insufficient attention is paid to the paramount importance of avoiding litigation wherever possible' (see [2002] Gazette, 17 January, 1).Tony Allen, director with the Centre for Effective Dispute Resolution, said: 'The Dunnett decision is the one that the mediation industry has been waiting for and expecting.

'It makes clear that the Court of Appeal views mediation and related processes at the heart of the overriding objective.

The legal profession and its clients must take mediation seriously or face the consequences.'Jeremy Fleming