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Mediation 1 Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

This is an extract of our Mediation 1 document, which we sell as part of our Alternative Dispute Resolution Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ADR: MEDIATION 1 MEDIATION - KEY CHARACTERISTICS "Mediation" (CEDR definition)

* Neutrally assisted negotiation

* Third-party (neutral) mediator assists parties to work toward negotiated settlement

* Parties remain in control of outcome/terms of settlement

* No determination of liability, solution tailored to parties' needs Jackson Review - "In spite of the considerable benefits which mediation brings in appropriate cases, I do not believe that parties should ever be compelled to mediate." Key Characteristics

* Mediator usually acts as "facilitator" - cannot compel parties to agree

* Parties can negotiate face-to-face, but tend not to - mediator acts as "shuttle diplomat"

* Voluntary, flexible, process, quicker and cheaper than litigation

* Can take place during litigation (with or without a stay) Why is Mediation Effective?

* Can be effective if negotiation has failed, similar in terms of control and cost-effectiveness.

* Can be arranged quickly - within days/weeks depending on how complicated case is

* Avoids adverse precedent being set by court

* Mediator:
* adds a new dynamic to bilateral relationship
* acting as "shuttle diplomat" - re-couching offers
* offers can appear more attractive coming from neutral third party
* creates a balance between opposing parties
* helping parties to work through deadlock by drawing on experience to develop strategies and tactics
* provides element of detachment and objectivity
* aids effective communication
* advises on timing of offers and concessions
* gets to grips with needs, interests and positions of parties.

* Other advantages:
* structured process with set time-frame
* parties paying for mediation - impetus to settle
* allows parties to "have their day in court", by having control over process, making statements etc.
* forum to air grievances confidentially
* parties can explore options for settlement which could not/would not be ordered by court.

* Even where whole dispute is not settled, parties better understand issues and may limit scope to be decided in litigation by settling some matters (eg. could settle quantum subject to liability (or vice-versa)) Judicial Endorsement

* Courts have endorsed ADR generally and mediation in particular

* Especially useful where ongoing relationship between parties

* Allows both parties to settle on terms they are happy with, rather than litigation which leads to judgment one way or the other (based on co-operation, not adversarial)

* Direction that parties consider negotiation is increasingly a standard part of pre-trial

directions. Effectiveness

* CEDR statistics (2010):
* 70% of cases referred to mediation, settle at mediation
* Aggregate settlement rate: 89%
* 2009-10: 49.8% increase in mediation. Reasons for using Mediation

* Contractually bound

* Court encouraged (eg. pre-trial directions, or stay)/directed (eg. commercial court order)

* Parties voluntarily choose it

* Parties referred (eg. employment and family cases)

* Tactical reasons (eg. confidentiality, precedent, flexibility in disclosure) MIAMember State

* Increasing emphasis on MIAMember State by Gov and Judiciary

* Usually mandatory meetings - purpose to give parties information about mediation, assess suitability of their case and, if appropriate, securing agreement to mediate

* Currently occur in Family cases and some cases going to COA (pilot scheme) COSTS & FUNDING Costs:

* Mediation Party costs:
* Lawyers (position statements, representation)
* Experts

* Mediator's fee
* Usually daily/hourly
* Depends on nature/value of case and experience of mediator
* If use ADR provider - fixed fee includes mediator, venue etc
* Usually payable in advance

* Expenses of mediation:
* mediation agreement usually provides expenses to be borne equally by parties, parties may agree to differ this or may include expenses in settlement agreement Funding Public Funding

* Legal Services Commission (LSC) may fund a party's mediation costs, fees and expenses in appropriate cases, only available if:
* mediator's fees are reasonable in the circumstances, and
* mediation appears to be most cost-effective way of proceeding

* LSC requires publicly-funded parties to attempt mediation before litigation, unless dispute is unsuitable or other side refuses

* LSC provides mediation:
* through LSC-contracted providers,
* under fixed-fee arrangements, and
* under the terms of the LSC Quality Standard (which mediators must comply with)

* If acting in a publicly-funded case, must ensure LSC prepared to fund mediation before beginning

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