Going to court - mediation dilema

Adrian_london

Hi all

Cutting a long story short, I'm taking a builder to court. He ignored me and ignored me and eventually through email communication he informed me to 'do not contact me again'.

I threatened him with court and he continued to ignore me. Eventually, court papers were filed.

He has now decided to opt for mediation but I don't really want to go to mediation.

My questions are:-

1) Can the judge hold it against me if I choose not to opt for mediation?
2) Does the judge even find out if I decided to opt out of mediation?
3) Can I be questioned by the judge as to why I opted out of mediation?
4) Can the judge rule against me for not try mediation first (even if I have a strong case)?



Adrian

bris

1. Yes, a judge will take a dim view if you don't first of all try to work this out between you through mediation.

2. The builder will tell him you refused and provide the paper trail or emails as proof you opted out, you would be foolish to deny it in a court of law.

3. Yes

4. No, a judge won't rule against you, if you have a strong case you can still win. However the judge can refuse your costs of bringing the case to court, which is what they often do if they think the other party acted reasonably in trying to avoid it. The judge will also be more open to any counter offer the other party has made, again if it reasonable, so not all your claim may be met.

Adrian_london

Thanks for the advice. It irritates me that I have to go to mediation. I really feel as though I'm wasting my time with mediation as I really don't even want the same builders stepping on my property again let trying to fix their mistakes.

Does the judge find out what was said during mediation? Does the mediator have to report his/her findings to the judge?

Looks like I've got no choice. Again, Bris, thank you.

Equaliser123

There is a bunch of case law that says that cost sanctions will apply if an offer of mediation is refused. OR if you simply go through the process of mediation - Dunnett v Railtrack ; Rolf v De Guerin

What is discussed in the mediation itself cannot be used in the proceedings but the conduct of the parties can be argued on the question of costs.

That said, how much is the claim for? Are you/the other side being legally represented?

I have personally never actually seen a party penalised in costs for not attending mediation as costs judges don't actually pry that deeply. It could, happen and in theory does so you reject mediation at your peril!

spacey2012

Is this a Limited Company or a sole Trader you are attempting to sue and what is the value of the claim.

keithdc

Just a query... does the mediation 'requirement' apply if papers have been served?

I was always of the view that mediation was to prevent a case reaching this point to start with.

keithdc

keithdc wrote: »

Just a query... does the mediation 'requirement' apply if papers have been served?

I was always of the view that mediation was to prevent a case reaching this point to start with.

Sorry... just read the cases cited above.

Equaliser123

keithdc wrote: »

Just a query... does the mediation 'requirement' apply if papers have been served?

I was always of the view that mediation was to prevent a case reaching this point to start with.

No. It is all part of the Civil Procedure Rules and the 'overriding objective' to avoid Court proceedings.

In most of the pre-action protocols, mediation is expressly mentioned as being required to be considered.

Adrian_london

Internet problems. Late reply.

I am suing the builder for £4050. It is a Ltd company. I am not happy with the work completed. I asked many many times for the builder to fix the problem but he has not only tried to avoid me but also said that it wasn't his company that did the work. He subcontracted the work out.

Obviosuly he is in the wrong regarding who carried the work out. I paid him. Invoice from him. Letters from him. Quote from him. Hey ho!!!

pinkshoes

I don't see the problem with mediation. Perhaps the builder will finish the work within 7 days (and have someone independent to check it is of a satisfactory standard), or he may cough up the money.

I think you'd be foolish to refuse mediation.

Takeaway_Addict

Mediation doesn't mean you have to reduce what you want from him. It maybe prudent to accept a lower offer but thats your perogative.