Court of Appeal Confirms Mediation is a Flexible Process

Frost v Wake Smith and Tofields Solicitors [2013] EWCA Civ 1960 (19 June 2013)
In the above case the Court of Appeal has confirmed that mediation is a flexible process and solicitors cannot be held responsible for final agreements not being reached, if the parties did not reach such agreements.
The claimant brought proceedings against the defendant for failing in his duty to ensure that the mediation ended in an immediate binding agreement (as opposed to one which was subject to further negotiation and perfection at a later date).
The Court of Appeal confirmed the ruling of the court below that the defendant solicitor owed no such duty. The mediation had resulted in an agreement in principle which was, without more, sufficiently certain and complete in its terms to be legally enforceable. The solicitor could not, without the parties’ further agreement, conjure finality from their provisional agreement.
The court emphasised that mediation was a flexible process of dispute resolution. In some situations, immediate and binding agreement is possible. In others, “flesh needed to be put upon the bones”. It would be regrettable if it were to make a decision which would cause practitioners to approach the mediation process with anything other than maximum flexibility. The court noted that it was part of the duty of a solicitor to advise the client of the nature of the process and the status of any agreement reached as a result.

July 9, 2013

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