BPTC Law Notes Alternative Dispute Resolution Notes
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
The following is a more accessible 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:
MEDIATION
what is mediation?
= negotiation facilitated by a neutral 3rd party
confidential
how do you end up in mediation?
voluntary by consent of both parties
directed by courts (robust encouragement, but can't compel)
pre-action protocols
dispute resolution clause in contract
referred by dispute resolution scheme
best time to mediate
ideally, before litigation starts - especially if issues fully defined, claim quantified and key info disclosed already
after litigation starts - if issues not defined to the extent early mediation cannot result in settlement
suitable and unsuitable case types
suitable cases (e.g.s)
contracts for goods / services
landlord and tenant disputes
land disputes
clin neg
insurance disputes
building disputes
unsuitable cases
where precedent needed to clarify law / inform policy
where settlement not in public interest
where settlement not possible due to party's past conduct
where protective proceedings required
where SJ appropriate
PI? no automatic assumption unsuitable, but if parties refuse probably not worthwhile trying to change their mind
indicators and counter-indicators of suitability
must be prepared to and capable of discussing solution, and must be room for negotiation e.g. not suitable in simple debt claim
indicators:
result other than that possible through court ruling desired
speedy solution desired
'legal proceedings fatigue'
long-term relationship (friends, family, business etc.)
common future interest(s)
more litigation / conflicts than presented in proceedings
importance of confidentiality
more parties involved in conflict that just those in proceedings
longstanding solution essential
counter-indicators
earlier mediation attempt failed
parties are comfortable with their conflict
precedent desired
public decision desired
too great a power imbalance
parties have cultural background unsuitable for mediation
legal procedure where only court ruling can bring solution
professional ethics
mediator (BSB Code of Conduct applies to barrister-mediators)
competent
independent + neutral
must refuse to mediate if conflict of interest e.g. personal / final interest in outcome, acted for one of parties in past
impartial
act and be seen to act impartially
being repeatedly instructed by 1 firm does NOT compromise provided disclose to parties
ensure parties understand procedure
fairness between parties
manage dominating parties
avoid unconscionable conduct producing settlement
don't put undue pressure on party to settle
express concerns to parties + lawyers if suspect position misrepresented / info inaccurate; halt process if necessary
confidentiality
termination of mediation
if settlement unenforceable / illegal
explain parties have right to withdraw at any time without giving reasons
ensure documents securely and confidentially stored
barrister
position statement - ensure all allegations properly arguable + supported by instructions
don't knowingly / recklessly mislead
don't be dishonest - can't say anything know or suspect not true, even if client wants this to be done to gain stronger bargaining position
don't act for client engaging in ADR with improper motive
mediation agreement
parties must sign before mediation, usually standard form
lawyer checks and signs
= contract between mediator and parties
key clauses
scope of mediation - by reference to the dispute, making clear which issues referred
practicalities - names of parties + attendees, time, place, confirmation parties have authority to settle
confidentiality
WP
neutrality + impartiality of mediator
mediator will not reveal confidential info without consent of provider, unless required as matter of law
parties will:
NOT call mediator as witness
NOT require mediator to disclose notes made re: mediation
indemnify mediator for costs of resisting / responding to application required
mediation will be conducted under Code of Practice of mediator / organisation concerned
settlement NOT binding until recorded in writing + signed by parties
costs
position statement
lawyer drafts
purpose: brief mediator on each side's case
if directed by court / dispute resolution clause, may be a deadline by which you have to serve position statement, usually 7-14 days in advance of mediation
attach chronology + list of dramatis personae
content
heading - names + description of parties, 'without prejudice for use in mediation only', ID party on whose behalf made
make clear if going to other side or just mediator
formalities - date, time, mediator, attendees + whether they have authority to settle
facts
issues - legal and factual
key issues of primary concern
party's case on issues
party's interests and objectives
position on issues
further information if required (though no forced disclosure)
negotiations to date
key supporting docs
agreed bundle - SoCs / letter before claim, WSs disclosed by parties, expert reports, offers, documents re: quantum, correspondence etc.
confidential bundle NOT revealed to other party - common if disclosure not taken place
disclosure NOT compulsory BUT failure to disclose key documents may result in settlement being overturned
mediator will refuse to communicate offer / info to other side that is contradicted by confidential doc he is aware of
costs
party's own costs
lawyers fees for preparing position statements etc. + preparing + attending mediation
expert fees (if necessary)
standard term in mediation agreement usually = each party bears own costs BUT can agree otherwise e.g. loser pays
mediator's fee - hourly / daily, payable in advance
expenses of the mediation
venue, refreshments etc.
mediation agreement usually states split equally BUT can agree otherwise e.g. loser pays
recoverability from losing party in litigation
if the mediation agreement deals with costs, court will enforce its terms (any Tomlin order only refers to the costs other than ADR and does NOT override the...
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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