This is an extract of our Unit 5 – Mediation document, which we sell as part of our Commercial Dispute Resolution Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
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Unit 5 - Consolidation CDR What will we be examined on?
- what is mediation as a form of dispute resolution
- Be able to identify which form of ADR is best? [party wants to maintain relations/confidential etc/save costs]
- explain the mediation process
- how to draft a case summary?
benefit of ADR is that wider remedies than litigation Mediation clauses are enforceable as long as they are sufficiently certain (who will be mediator/how appointed etc?)
OUTCOME 1 - cost consequences of refusal of ADRif your refusal is unreasonable the court will penalise you in costs
Dunnett v Railtrack (2002) was the first case where the winner didn't get costs because of their unreasonable refusal to mediate:
- For first time since CPR introduced a successful litigant didn't get costs award they might have expected because they didn't mediate Lord Justice Dyson Halsey reasonable guidelines: Nature of the
- ADR not appropriate if C seeking a remedy that only the court can give dispute (injunction) o Remember that mediation is possible at any time (e.g. after the injunction/undertaking has been granted)
- If the parties need the court to resolve a point of law which establishes from time to time and which is essential to the future trading relations of the parties under a long term contract
- Where the dispute involves allegations of fraud or commercially disreputable conduct Merits of the
- If a party reasonably believes they have a strong case then the court case might think they have a good reason for reasonably effusing ADR because: o ADR inevitably leads to concessions you don't think you need to make as your case is so strong you would win in court o If this wasn't the case there would be scope for C to use threat of costs sanctions to extract a settlement from D even where claim is without merit (e.g. C hoping to get a nuisance value offer from a large D to buy off cost of mediation) o Daniels v The commissioner of police for the Metropolis 2005 - reasonable for public body (police) to refuse ADR in circumstances where it wished to contest what it considered to be an unfounded claim
- In truly borderline cases, the fact that a party refused to ADR because he thought he would win is to be given little or no weight when considering the reasonableness of refusal to ADR
- The party MUST reasonably believe his case is watertight, unreasonable belief is no justification Extent to
- If previous settlement offers have been made and rejected this shows that which other one party is making efforts to settle and the other has unrealistic views of settlement the merits of their case, may make it more reasonable methods have
- BUT mediation often succeeds where previous attempts to settle have been failed attempted o Remember that court would know about P26 offers as this is decided at the end during costs
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