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LPC Law Notes Commercial Dispute Resolution Notes

Unit 5 – Mediation Notes

Updated Unit 5 – 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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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 ADR

  • if 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 dispute

  • ADR not appropriate if C seeking a remedy that only the court can give (injunction)

    • 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 case

  • If a party reasonably believes they have a strong case then the court might think they have a good reason for reasonably effusing ADR because:

    • ADR inevitably leads to concessions you don’t think you need to make as your case is so strong you would win in court

    • 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)

    • 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 which other settlement methods have been attempted

  • If previous settlement offers have been made and rejected this shows that one party is making efforts to settle and the other has unrealistic views of the merits of their case, may make it more reasonable

  • BUT mediation often succeeds where previous attempts to settle have failed

    • Remember that court would know about P26 offers as this is decided at the end during costs
Whether costs of ADR would be disproportionately high

  • When the sums at stake in litigation are comparatively small. A mediation can sometimes be at least as expensive as a day in court

  • Prospects of mediation being successful cannot be predicted, possibility of successful party having to incur costs of an abortive mediation is a relevant factor
Whether any delay in setting up and attending the DR would have been prejudicial

  • If mediation is suggested late in the day, acceptance of it may have the effect of delaying the trial of the action then this may be relevant
Whether ADR had a reasonable prospect of success

  • Most of the time it will do because you cannot rely on your own unreasonableness “I was never going to try so it wouldn’t have worked”

  • A valid reason would be that A reasonably took the view that B is unlikely to accept a reasonable compromise

  • Some disputes are more intractable than others

  • Some mediators are more skilled than others

  • The burden of proving an unreasonable refusal is on the unsuccessful party and therefore they must show that mediation did have a reasonable prospect of success

    • He doesn’t have to prove that mediation would have succeeded just that there was a reasonable prospect of success

    • It is easier for him to prove this that for successful party to prove the contrary

- para 8 PD on Pre-action conduct – while ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings

- PGF II SA v OMFS Company 1 Ltd 2010 – silence in response to the oppositions requests to mediate amounts to a refusal to mediate which may be unreasonable

OUTCOME 2 – Be able to:

  1. identify legal issues in dispute and possible outcomes at trial

  2. recognise strengths and weaknesses of parties bargaining position

  3. Needs and desires of the parties

FOR ALL OF THE ABOVE CHECK THE FACTS IN THE EXAM QUESTION

  1. Basis of settlement between parties

  2. Finalise a settlement

  1. Have you agreed what will happen to the court proceedings?

  2. Have you dealt with any interim apps or undertakings?

  3. What has each party agreed to do?

  • Logistics of the agreed activities?

  • Any problems with the agreement?

  • Precise timing? Is it realistic

  1. Have you agreed that one party pays money to the other?

  • Precise timing?

  • Method and place of payment?

  1. Have you agreed any property transactions (sale, lease, grant of right over land)?

  • Have you covered legal formalities for grant/transfer of an interest in land?

  • Have you thought about possible future use of land in question?

  1. Have you...

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