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LPC Law Notes Commercial Dispute Resolution Notes

Preparing For Mediation Notes

Updated Preparing For Mediation Notes

Commercial Dispute Resolution Notes

Commercial Dispute Resolution

Approximately 305 pages

A collection of the best Commercial Dispute Resolution notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC 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 Commercial Dispute Resolution notes available in the UK this year. This collection ...

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

Preparing for mediation

Understand and advise about process of mediation
Form of non-determinative ADR, agreement must be consensual and cannot be imposed by the mediator

  • CEDR defines it as a flexible process where mediator actively assists parties

When to mediate:

  • CPR 1.4 solicitor must discuss some form of ADR with client

  • Mediation can take place at any time during the course of the dispute resolution process (even after judgement, when appeal pending)

  • Should not be considered as an either or (litigate or mediate)

Setting up the mediation process:

  • Check for mediation clause, if there isn’t one parties must agree how mediation is conducted and who is going to act as mediator

  • If not once the parties have agreed to mediation, they need to negotiate a mediation agreement. This records matters such as when the mediation will take place, who the mediator will be, confidentiality and fees.

  • Parties can select a mediator themselves or request an ADR organisation

  • Who will pay mediators costs and costs of the venue (usually shared)

  • Where the mediation will take place

  • Parties usually agree to pay their own legal costs of mediation

  • If mediation fails then likely that costs incurred by a party in relation to the mediation will form part of overall costs of the case which will be paid by loser subject to assessment by the court

Preparing for the mediation

  • Clear understanding of your client’s case and risks of proceeding to trial should mediation not work

  • Decide who will attend mediation (rep must have authority to settle) legal team, counsel? Experts?

  • Try to agree a bundle of relevant docs and try to agree a joint case summary prior to mediation setting out the case

  • Parties may also draft detailed written submissions for the mediator prior to mediation.

  • Explain to client the way mediation will be conducted and the consequences of it failing

Procedure Overview:

1. The parties sign a mediation agreement which can include the disclosure of documents and information and confidentiality.
2. The parties submit their Case Summaries and documents to the mediator.
3. There is a joint session during which the parties give opening statements.
4. The mediatorholds meetingswith each party in private.
5. The parties agree heads of terms.
6. The parties draft and sign a settlement agreement.

Considerations in selecting a mediator:

  • Commercial background

  • Number of mediations

  • Success rate

  • Fees

  • Technical knowledge of type of dispute

  • Availability

  • Legal training

  • Academic qualifications

The mediation:

  • Way it will work will be set out in the mediation agreement but flexibility is essential

1. Mediator invites each party to make opening statement

2. Each party retires to separate rooms and mediator engages in private sessions with each party to discuss position, concerns, wants and needs (not simply a messenger) he should encourage party to consider various options based on info mediator has got from private sessions

3. Settlement should be recorded in writing and signed by all parties (must be drafted carefully, which may take time but will mean it’s certain). If agreement not completed then there is a change minds overnight.

4. Parties will have to lodge consent order setting out bases on which action has been settled if proceedings have been started

  • If failure to settle, all is not lost as parties may become more realistic about the risks and merits of their case.

  • Can walk away of there is a breakdown in trust between the parties, however, unlikely to be cost sanctions for failing to attempt ADR.

  • Many cases still settle after unsuccessful mediation

  • Mediations are conducted “without prejudice” basis – nothing discussed or revealed at the mediation may be revealed to the court


Draft a confidential case summary for use in mediation (See PRECEDENT)

1. The parties

  • Describe the parties to the dispute

  • Names, addresses and any “abbreviations” to be used throughout
2. The court proceedings

  • When proceedings issues and what were was the application for?

  • What stage has case reached?

  • Concise description of your clients case (don’t need to much detail as mediator will read court docs in mediation bundle

  • Are there any relevant time restraints?

  • Any interim apps/undertakings given by either party and there date?

  • Any case management directions and there date?
3. Costs

  • What are your client’s costs to date?

  • What do you estimate that your client’s costs will be to trial?

  • Is your client paying privately, are they legally aided, funded by CFA or covered by legal expenses insurance?

  • If client funding privately, say that they wish to avoid costs of preparing evidence, instructing their experts and attending trial
4. Other issues

  • Are there any matters in the background which...

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