Raising an allegation that a party has not participated in the mediation process in good faith has historically been a sensitive hot-button issue for mediators, parties, and even the courts. In fact, even on occasions where the charge is made and the question has been posed to a court, at a mediation unless there is some clear objective line that one of the parties crossed, such as a failure to appear, failure to have a party representative with knowledge or authority attend, or a failure to provide a mediation statement. Courts regularly make clear that while mediation may be mandatory, settling at a mediation is not. However, what if parties have reached some form of agreement at mediation, then refuse to move forward to consummate the same? Is that also bad faith? What will courts do in such a scenario?

Originally published from the ABI Journal, Vol XLI, No 4 - April 2022.