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Mediation Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

Updates Available  

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

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:

MEDIATION

? what is mediation?
o = negotiation facilitated by a neutral 3rd party o confidential
? how do you end up in mediation?
o voluntary by consent of both parties o directed by courts (robust encouragement, but can't compel) o pre-action protocols o dispute resolution clause in contract o referred by dispute resolution scheme
? best time to mediate o ideally, before litigation starts - especially if issues fully defined, claim quantified and key info disclosed already

o after litigation starts - if issues not defined to the extent early mediation cannot result in settlement

? suitable and unsuitable case types o suitable cases (e.g.s)contracts for goods / serviceslandlord and tenant disputesland disputesclin neginsurance disputesbuilding disputes

o unsuitable caseswhere precedent needed to clarify law / inform policywhere settlement not in public interestwhere settlement not possible due to party's past conductwhere protective proceedings requiredwhere SJ appropriate

o PI? no automatic assumption unsuitable, but if parties refuse probably not worthwhile trying to change their mind

o indicators and counter-indicators of suitabilitymust be prepared to and capable of discussing solution, and must be room for negotiation e.g. not suitable in simple debt claimindicators:

i. ii. iii. iv. v.

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)

vi. more litigation / conflicts than presented in proceedings vii. importance of confidentiality viii. more parties involved in conflict that just those in proceedings

ix. longstanding solution essentialcounter-indicators

x. earlier mediation attempt failed xi. parties are comfortable with their conflict xii. precedent desired xiii. public decision desired xiv. too great a power imbalance xv. parties have cultural background unsuitable for mediation xvi. legal procedure where only court ruling can bring solution

? professional ethics o mediator (BSB Code of Conduct applies to barrister-mediators)competentindependent + neutral?

must refuse to mediate if conflict of interest e.g. personal /
final interest in outcome, acted for one of parties in past

impartialact and be seen to act impartiallybeing repeatedly instructed by 1 firm does NOT compromise provided disclose to partiesensure parties understand procedurefairness between partiesmanage dominating partiesavoid unconscionable conduct producing settlementdon't put undue pressure on party to settleexpress concerns to parties + lawyers if suspect position misrepresented / info inaccurate; halt process if necessaryconfidentialitytermination of mediationif settlement unenforceable / illegalexplain parties have right to withdraw at any time without giving reasonsensure documents securely and confidentially stored

o barristerposition statement - ensure all allegations properly arguable +
supported by instructions

?

don't knowingly / recklessly misleaddon't be dishonest - can't say anything know or suspect not true, even if client wants this to be done to gain stronger bargaining positiondon't act for client engaging in ADR with improper motive

? mediation agreement o parties must sign before mediation, usually standard form o lawyer checks and signs o = contract between mediator and parties o key clauses (a) scope of mediation - by reference to the dispute, making clear which issues referred

(b) practicalities - names of parties + attendees, time, place, confirmation parties have authority to settle

(c) (d) (e) (f)

confidentiality WP neutrality + impartiality of mediator mediator will not reveal confidential info without consent of provider, unless required as matter of law

(g) parties will: i. NOT call mediator as witness ii. NOT require mediator to disclose notes made re: mediation

iii. indemnify mediator for costs of resisting /
responding to application required

(h) mediation will be conducted under Code of Practice of mediator /
organisation concerned

(i) settlement NOT binding until recorded in writing + signed by parties

(j) costs
? position statement o lawyer drafts o purpose: brief mediator on each side's case o 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

o attach chronology + list of dramatis personae o content (a) heading - names + description of parties, 'without prejudice for use in mediation only', ID party on whose behalf made

(b) make clear if going to other side or just mediator (c) formalities - date, time, mediator, attendees + whether they have authority to settle

(d) (e) (f) (g) (h) (i) (j) (k)

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 o agreed bundle - SoCs / letter before claim, WSs disclosed by parties, expert reports, offers, documents re: quantum, correspondence etc.

o confidential bundle NOT revealed to other party - common if disclosure not taken placedisclosure NOT compulsory BUT failure to disclose key documents may result in settlement being overturnedmediator will refuse to communicate offer / info to other side that is contradicted by confidential doc he is aware of

? costs o party's own costslawyers fees for preparing position statements etc. + preparing +
attending mediationexpert fees (if necessary)standard term in mediation agreement usually = each party bears own costs BUT can agree otherwise e.g. loser pays

o mediator's fee - hourly / daily, payable in advance o expenses of the mediationvenue, refreshments etc.mediation agreement usually states split equally BUT can agree otherwise e.g. loser pays

o recoverability from losing party in litigation

2. 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 mediation agreement)

3. if mediation agreement does NOT deal with costs, recoverable if 'incidental' to proceedings (s51 SCA)

i. mediation costs incurred as part of complying w/ pre-action protocol - yes

ii. costs of a separate stand-alone mediation - no
? styles o used in combination o facilitative (the norm)does NOT give opinion on merits of case, evaluate likely outcome or put forward settlement proposals

Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.