The court will not order disclosure of without prejudice correspondence between the parties for the purpose of deciding whether or not to penalise a party in costs refusing to mediate. In Reed Executive plc v Reed Business Information Ltd (2004) the Court of Appeal said that if a party wishes to refer such correspondence on the issue of costs they should make it “without prejudice save as to costs”. If one party believes that the other is unreasonably refusing to mediate then this should be stated in correspondence.

The court also endorsed the use of an Ungley Order in such circumstances (see under ADR orders below right).