Balancing the Requirements of Confidentiality and Good Faith in Mediation after a Party has Refused to Mediate

The aim of this essay is to explore the ways to balance the requirements of confidentiality and good faith in mediation, after a party has refused to mediate, so that the unsuccessful party can be protected from bearing an unfair cost sanction. It will do so by discussing the criteria for when it is reasonable to refuse to mediate, when determining costs. It will consider the relative importance and interpretations of the terms confidentiality and good faith with regards to costs. Then, it will consider who should decide whether the requirements of good faith have been breached and how such a determination can be made. Lastly, it will propose ways to ensure accountability of conduct as well as better practices in terms of costs.