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Mediation 2 Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

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A more recent version of these Mediation 2 notes – written by City Law School students – is available here.

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& TIMING Suitable Disputes

* Any kind of dispute can be mediated

* Commonly used in:
* High value commercial cases
* Family cases
* Employment cases
* Specialised sector disputes - eg. financial regulatory and energy. Timing

* Lawyers should consider when mediation should be attempted:
* Should it take place before issue?
* If not, at which point in the litigation process should it be?
Before Commencing Litigation

* Disadvantages: if unsuccessful can lead to entrenchment, can waste time and money if issues still unclear

* Advantages: saves most time and money, best for ongoing relationship


Nigel Witham - "The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that settlement is no longer possible."


Parties should consider:
* Are the issues fully defined?
* Is the client's case in relation to each issue clear?
* Has all the key information been obtained?
* Have the main witnesses been interviewed and statements taken?
* Is the other party's case clearly developed?
* Have the key documents been exchanged?
# If not, can a pre-action disclosure order be obtained for specific/limited disclosure?
* Is it a technical case which is likely to turn on expert evidence?
# If so, should an expert report be obtained before? Should the parties jointly-instruct or jointly-select an expert?
* Despite incomplete disclosure, would it nonetheless be more advantageous to the client to try to obtain early settlement?
Decision on when to mediate should be objectively reasonable on the facts of the case at the time (otherwise could lead to adverse costs order) Parties can agree with mediator on a timetable for disclosure if it becomes clear that the issues are not sufficiently defined/further documents are needed, may adjourn mediation until disclosure is complete. 'Mediating Construction Disputes: An Evaluation of Existing Practices, 2010' - Largest number of successful mediations took place in early stages of proceedings.






When selecting the mediator, parties should consider the style style of the mediator and the scope of their role.




Facilitative mediation is the normal style If the mediator agrees to perform an evaluative role as well, this should be recorded in the mediation agreement (at the outset/added by addendum during mediation) Evaluation will be limited to non-binding opinion on likely outcome in litigation or range of settlement.


* Focus on needs and interests of parties underpinning the dispute, rather than strict legal merits.

* Mediator asks questions, encourages parties to re-evaluate, consider consequences of litigation. Evaluative

* Focus on strengths and weaknesses of case

* Mediator exerts more control over process

* Emphasis on legal and factual issues and evaluation of evidence.

* Mediator will not usually evaluate the claim or issue unless specifically asked by both parties (otherwise may undermine appearance of neutrality)

* Recommended that if evaluation is to take place, should be given openly, on same terms to both parties.

* Some ADR providers do not permit mediators to express an opinion on the merits of the dispute, indicate likely outcome or analyse the parties' legal positions

* If evaluation is sought, should be specified in advance.

* Some mediators will be unwilling as compromises their neutrality and appearance of impartiality

* Judicial conciliation is a form of evaluative mediation. Transformative

* Mediators focus on mending relationships between the parties and improving communication, rather than dispute resolution

* Ethos: If parties improve their relationship, more likely to resolve their own dispute. MEDIATION HYBRIDS MED-ARB

* If no agreement reached at (facilitative) mediation, parties may invite the mediator to act as arbitrator to determine the dispute and make a binding or non-binding award (as agreed by the parties)

* Issue - mediator is provided with confidential information and prospect of him becoming arbitrator may affect parties' willingness to disclose to him.
* Can be overcome by providing for a different person to act as arbitrator.

* If settlement reached at mediation, parties may appoint the mediator as arbitrator and ask him to draw up the settlement agreement as an arbitration consent award, which would then be enforceable at law.
* If wish to do this, should commence process by an arbitration agreement otherwise, if agreement reached at arbitration, there will be no "dispute" within which an arbitral award can be made by consent (see Arbitration Act)

* CEDR Report:
* Arbitration tribunal should facilitate a negotiated settlement unless the parties otherwise agree.
* Mediation window should be inserted into arbitration proceedings at the request of the parties, and when awarding costs tribunal should take into account any unreasonable

refusal to mediate. ARB-MED

* Reverse process.

* Simplified form of arbitration first, followed by mediation.

* The decision made at arbitration will be sealed and not revealed unless parties do not settle at mediation.

* If settlement reached, time and money spent on arbitration will be wasted.

* No issue with confidentiality as decision made before information given to mediator during mediation. Telephone Mediations

* Occur in:
* Small Claims Court Mediation Scheme
* Restraining order preventing parties from meeting
* Parties separated by significant geography.

* Private meetings - direct calls between party and mediator

* Joint meetings - conference calls

* Organise settlement agreement in conference call. Mediator may record terms in writing and email/fax to parties for it to be fully drawn up by their lawyers and signed MEDIATION PREPARATION Selecting a Mediator

* Can approach mediator directly or

* Use an ADR-provider
* Provider will give shortlist of mediators with relevant expertise
* Provider will administer process
# Eg. date, venue, mediation agreement, ensuring no conflict of interest, advising on documents and statements to be provided by each party, dealing with queries and concerns
# Can be difficult to negotiate different terms from standard mediation agreement.

* Some providers offer "fast-track" service if parties organise own date and venue

* Large, complex disputes - parties may appoint more than one mediator Factors Influencing selection

* Personal recommendation

* Personality

* Expertise in subject-matter

* Style of mediation,

* Experience

* Accreditation

* Language and culture The Mediation Agreement

* Mediation (in UK) has no formal statutory framework, mediation agreement regulates the mediation

* Contract (Brown v Rice) between parties and mediator,
* sets out terms of appointment of mediator, and
* scope of mediation

* Parties will usually sign agreement in advance, and all parties may sign single copy at the

beginning of the mediation. Duration

* Typically one day

* Time-limited, fixed-fee mediations: 3 hours (eg. through CMC online directory)

* Where unsure of length, can book for one day with all parties prepared to adjourn for another day if necessary. Venue

* May be organised by provider or at independent mediator's premises

* Otherwise neutral venue, with at least 3 rooms

* Rooms should be available for sufficient time and include flip-charts, telephones, fax machines, computers and internet if necessary The Attendees

* Once a party has identified all attendees, the other party should be notified of their names and details.

* Consider:
* Who has direct knowledge of the key issues?
* Who is most closely affected by the dispute and outcome?
* If relevant, who has the necessary technical expertise?
* Does resolution of any issue require evidence from a witness?
* Who has authority to settle?
* What message will the identity and status of attendees send to the other side?

* Key attendees:
* Representatives of the parties
# If companies/firms/corporations - should be the person with the most direct knowledge of the issues
# Individuals may be able to bring a friend or relative as support, though they may not be allowed in mediation room if insufficient space.
* Person with authority to settle
# Usually also required by mediation agreement
# If cannot attend, should be contactable all day
# If the person attending has insufficient authority for the settlement, parties may sign a "heads of agreement" document setting out the terms subject to authorisation being obtained (not binding until authorisation obtained, either party can therefore resile in the interrim)
* Lawyers
# Usually solicitors and/or Counsel
# If party is unrepresented, a Pro Bono organisation (eg. Bar Pro Bono Unit or LawWorks) can be approached to try to organise representation
# Mediator cannot advise about legal merits of a proposed settlement so representation is essential in complex claims though often unnecessary in small claims.
* Insurers
# If a party is going to be indemnified under a policy of insurance, then a representative of the insurer may need to attend, or be available, to approve any settlement
* Interest groups
* Experts
# May be necessary if technical issues require an expert to advise/resolve
# Each party may have obtained own expert evidence and mediator may ask both experts to be present at the mediation. They may be able to meet at a "without

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