Mediation Notes

Mediation

Egs of Mediation/ADR Providers

• CEDR (Centre for Effective Dispute Resolution)

• ADR Group

• Conflict Resolution Centre

• Civil Mediation Council (brings together providers, mediators academics, legal professional bodies)

(1) What is Mediation

• A confidential, structured process;

• Involves a neutral/independent third party;

• Facilitates the parties working towards a negotiated settlement (a form of neutrally assisted negotiation).

• Non-adjudicative;

• Voluntary process, non-binding (until the point of settlement).

• There is no determination of liability in mediation; any settlement reached is not necessarily based on underlying legal rights/obligations of parties.

(2) Why do parties mediate/How do parties find themselves in mediation?

• From a contractual obligation (a dispute resolution clause in the contract, that first attempt to resolve any dispute shall be by mediation);

• Court ordered stay (may require the parties to undertake ADR including mediation)

• Court may have encouraged parties to attempt to settle by mediation, and the parties may fear adverse cost orders/other sanctions if they unreasonable refuse to mediate.

• Parties have Voluntarily chosen to mediate

• Parties are referred to mediation by a disputes resolution scheme.

• Tactical reasons

  • eg seek clarification of issues; assess strengths/weakness of other side’s case). Such intentions are not improper if coupled with a genuine intention to explore settlement.

  • Eg fishing expedition, is probably bad faith, no genuine intention to settle.

• Practical considerations, eg:

  • Desire to settle a multiplicity of claims re a number of different but related issues (in court, each claim may proceed in different courts/jurisdictions);

  • Where a multitude of parties, eg a number a number of Ds and additional parties; all parties & claims can be brought into the mediation process.

(3) What preparation to lawyers do before mediation?

• Review and sign mediation agreement

• Check parties’ authority to settle

• Prepare a position statement

• Manage/explain mediation process to client

• Decide who should attend mediation

• Decide what docs need to be prepared and exchange, prepare bundle (preferably joint)

• Decide if and what expert evidence should be sought on any issue

• Choose a mediator

• Prepare any docs/evidence

• Prepare statement of costs to date and going forward (costs that would accrue if went to trial)

• Identify legal & factual issues;

• Evaluate the evidence, reach conclusion on likely outcome.

• Consider with client BATNA and WATNA (will include consideration of costs)

• Plan a strategy for negotiation.

• Identify objectives for mediation.

• Do a costs analysis.

What preparation does the mediator do?

• Reads the papers sent to her, including any confidential briefing

• Contacts each of the parties/lawyers (pre-mediation meeting/phone call), to ensure they understand the mediation procedure; ask if they need to know anything further.

• Check who is attending, including people with authority to settle

• Discuss the likely duration

• Sometimes ask the lawyers to discuss with their respective clients possible terms of settlement and consider drafting them in advance

• Find out what experience of mediation the lawyers and parties have.

• Set timetable for pre-mediation events, eg when mediation agreement should be signed & returned; date for providing and exchanging position statements and docs).

The Mediation agreement, what should it contain

• The Mediation agreement = the contract between the mediator and the parties appointing him.

  • Sets out terms on which the mediator is appointed and the scope of the mediation.

  • It regulates the relationship between the parties themselves and between the parties and mediator.

  • By signing the mediation agreement, the parties demonstrate a degree of commitment to the mediation.

• Courts have recognized that: mediation agreements are valid and they contain enforceable terms.

• Courts have granted an injunction to restrain breach of a confidentiality clause in such agreement.

• Most agreements will contain the following key clauses:

  • That the parties are attempting to settle dispute at mediation

  • Role of mediator

  • Terms on which mediator is appointed

  • Scope of mediation (if it is only to deal with certain aspects of the dispute) which issues in dispute are to be mediated.

  • Practicalities, eg

    • names of parties and mediator;

    • date and time and place of mediation;

    • duration;

    • that the reps of the parties attending the mediation have authority to settle).

    • Fees.

  • Express clause that Process is confidential: that neither party can reveal any details of the mediation process or any info obtained during the mediation, without express consent of all parties.

  • Express clause re ‘without prejudice’ rule protection for comms between the parties and/or the mediator.

  • Preparation and exchange of documents for the mediation

  • The procedure that will be followed at the mediation

  • The mediator is neutral and impartial.

  • An immunity clause for the protection of the mediator.

  • That the parties will not bring a claim against the mediator (at all, or only in very limited circumstances).

  • That the Parties will not call the mediator (or his employees/agents) as a witness or expert in later legal proceedings in connection with the dispute or in relation to any matter arising out of the mediation.

  • Mediation will be conducted under mediation standard rules and/or Code of Conduct.

  • Any settlement reached will not be binding until recorded in writing and signed by the parties (/other steps required if a settlement is reached).

  • Set out the costs & expense of mediation and who is responsible.

    • Often provides that fees & expenses should be borne jointly and that each party is responsible for their own legal costs. & that each Party agrees that any court/tribunal may treat the Mediation fees and parties’ legal costs as costs in the case in relation to any litigation/arbitration, where that court/tribunal has power to assess or make orders as to costs.

  • An...

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