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Preparing For Mediation Notes

LPC Law Notes > Commercial Dispute Resolution Notes

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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?
? 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 mediator holds meetings with 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

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