Practice Direction 31 on Mediation (PD 31) of the Judiciary came into force in 2010. The judiciary has also set up the Mediation Information Centre in January, 2010 to promote the use of mediation in light of PD 31 and to help litigants access mediation services from professional bodies.
Key features of PD 31
PD 31 applies to all civil proceedings in the Court of First Instance and the District Court which have been commenced by writ. It provides a framework within which the court can facilitate the use of mediation when exercising its case management powers. To make use of mediation in appropriate cases for the settlement of litigants’ disputes.
After the close of pleadings, it is mandatory for parties to complete a timetabling questionnaire in which they are required to indicate to the court whether or not they have attempted, or are willing to attempt, to settle the case by ADR under the new rules. Legally represented Parties are required to file timetabling questionnaire together with a mediation certificate in a form similar to that contained in Appendix B to PD 31.
Part I requires the Plaintiff / Defendant to indicate if they are willing to attempt mediation with a view to settling these proceedings. If the Plaintiff / Defendant is not willing to attempt mediation, they have to state the reasons in the Certificate or, if thought desirable, such reasons or additional reasons should be set out in a statement signed by the party concerned or his solicitor and attached to the Certificate in a sealed envelope.
Part II requires solicitors confirm, in their personal capacity if:
(a) They have explained to their client the availability of mediation with a view to settling the dispute or part(s) of the dispute, and the respective costs positions of mediation as compared with the costs of the litigation.
(b) They have explained to their client the Mediation Practice Direction.
(c) The information set out under Part I is to the best of their knowledge and belief true and correct.
Part III requires the party, or if the party is a corporation or an association, to describe the position of the person signing the certificate, and state the authority of the person to represent the party in the proceedings and to acknowledge that they understand the Practice Direction on Mediation and the availability of mediation to resolve the dispute instead of litigation. They have to further confirm the information set out under Part I is true and correct.
Under PD31, the process of mediation is normally commenced by one party serving the other(s) with a mediation notice and to file a copy to the court. A specimen mediation notice is contained in Appendix C to PD 31. The Applicant shall indicate in the mediation notice:
- If the applicant wishes to propose the adoption of the rules of a particular body for the proposed mediation, then specify them;
- The name of mediator proposed together with mediator’s CV. The estimated costs for engaging the mediator;
- The proposed venue for the mediation and the estimated costs of renting the venue;
- The proposals as to payment of fees and costs for the mediation;
- The proposed minimum level of participation that should qualify as a sufficient attempt at the mediation;
- The proposed date of commencement of mediation;
- If the Applicant requests / opposes an interim stay(together with period of time) of the legal proceedings pending the mediation process;
- If the Applicant’s willingness to pursue mediation is / is not conditional upon an interim stay of the legal proceedings being granted.
A specimen mediation response is set out in Appendix D to PD 31. Upon receiving the mediation notice, the respondent must file and serve a mediation response within 14 days indicating whether or not he or she agrees to engage in mediation, an agreement to the proposals contained in the mediation notice or counter-proposals with respect to the process.
Directions by the court
In the event that the parties are unable to reach an agreement between themselves on the terms of mediation, the court may assist them in resolving any issues. A party can apply to the court for directions concerning the time for serving the mediation response, the venue, timeframe, mediation costs and fees, and the minimum participation for attempting mediation.
Adverse costs order for unreasonable failure to mediate
PD 31 expressly empowers the court to exercise an adverse costs against parties refusing mediation. Whether or not a party has unreasonably failed to do so depends upon the circumstances of the case. In England, comparable rules were adopted following the implementation of the Woolf Reforms in 1999. The Court of Appeal in Halsey v Milton Keynes General NHS Trust  4 All ER 920 has suggested the following as key issues that the court should take into account:
(a) the nature of the dispute;
(b) the merits of the case;
(c) whether other methods of settlement have been attempted;
(d) whether the cost of mediation would be disproportionately high;
(e) whether mediation will cause delay to the trial; and
(f ) whether mediation has a reasonable prospect of success.