The Court found that the refusal by the Defendant during 2020 to engage in mediation was not unreasonable in all the circumstances of the case - which in this case included the Claimant advancing "a factually untrue case".

As to the type of mediation, the Court said that "there are many different styles of alternative dispute resolution. The type adopted in 2021 is what is called "blind bidding"; it is a cheaper method, but it does involve a mediator. I am reluctant to impose a qualitative analysis upon different types of mediation. In any event, given the point that I have explained at [31], the type of mediation adopted is not relevant. The stage at which the mediation was undertaken is, in my judgment, understandable in the circumstances of this case and particularly so given Canham's need to consider both disclosure and witness evidence. I do not consider that Canham's position regarding when it was prepared to mediate to be unreasonable, and therefore it is not relevant to the exercise of the court's discretion in the circumstances of this case."

Two points of interest arise - firstly the suggestion that blind bidding is a form of mediation and secondly, whether engaging in blind bidding is sufficient to meet a party's obligations to attempt to settle their dispute before trial.

On the first issue, it is clear that blind bidding is not a form of mediation.  Blind bidding is a process whereby a neutral (often a mediator) is engaged to assist parties in exchanging offers of settlement (more information can be found here). Where it does involve a mediator it is only because of circumstance and not necessity albeit that, of course, mediators are highly used to the confidential nature of such processes.  In addition, if the process does not result in settlement then the parties can move to mediation either with the same mediator or another. 

So, if blind bidding is not a mediation does participation in a blind bidding meet the duties on the parties to try to settle their disputes pre- or post- issue?  The Practice Direction relevant to Pre-Action Conduct And Protocols states at paragraph 10 that:

10. Parties may negotiate to settle a dispute or may use a form of ADR including—

(a) mediation, a third party facilitating a resolution;

(b) arbitration, a third party deciding the dispute;

(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and

(d) Ombudsmen schemes.

Blind bidding may be a form of ADR however it is certainly not mediation. The parties do not meet, nor do they have the opportunity to share information and explore settlement. It is merely an auction to discover whether there is an overlap of expectation. 

Will future court decisions reflect that difference in their decisions as to whether a party has met its ADR obligations?  What will advisers be telling their clients about the risk of only agreeing to a blind bidding and not participating in a mediation or other form of ADR?  With upcoming reforms to the civil justice system, as proposed by the Master of the Rolls, I expect that there will further discussions and developments on this issue. 

I look forward to the debate!

If you'd like to find out more about blind bidding or mediation please do get in touch with us info@mediate.co.uk or 0333 014 4575.