Mediating in Good Faith in the English and Welsh Jurisdiction: Lessons from other Common Law Countries

Abstract

Litigants are now required to consider mediation and can be penalized under the Civil Procedure Rules if they unreasonably refuse to use an ADR procedure. As litigants are expected to participate in mediation, there are mounting concerns, particularly in common law countries that mandate attendance before accessing the courts, that parties are obstructing the process by engaging in ‘bad faith’. Some common law countries have used the concept of ‘good faith’ negotiation to design rules or codes to regulate conduct in mediation. The English and Welsh jurisdiction identifies mediation as a type of negotiation, but has no developed concept of negotiating in ‘good faith’. This paper first reviews the case law on good faith negotiation in England and Wales, before considering the concept of ‘good faith’ in mediation and assessing whether or how the conduct of parties in mediation could be controlled. The concept of good faith in mediation may not provide the answer because of definitional difficulties and a review of Australia, Hong Kong and the USA indicates that many rules or procedural codes are confined to a ‘minimum level’ of participation. Furthermore, court control of conduct is limited by the rules of without prejudice in negotiation and confidentiality rules in mediation, which limits court review unless there is substantial impropriety such as blackmail or duress. This paper proposes that the issue of the conduct of parties in mediation must be given serious consideration, particularly in view of judicial pressures in some quarters for courts to be given increased powers to direct litigants to mediate. Mandating mediation may lead to more incidences of bad faith or to party involvement without serious engagement. An argument is made to draw on the already developed principles of unreasonable behaviour in litigation in order to define the expectations of reasonable conduct in mediation.