Overview On Mediation

Mediation

What is mediation?

Structured, flexible, voluntary process

Confidential and Without Prejudice

A third party neutral (the mediator) helps parties towards an negotiated settlement

The parties control outcome and terms of settlement, not the mediator

When can mediation be used?

Any kind of dispute

Any stage of dispute

Earlier is better - more cost-effective

Best time? Either before issue or as soon as sufficient information is available to enable negotiation

Costs of Mediation include:

1. Legal fees of solicitors/counsel

2. Mediator s fee

3. Charges of the venue

4. Other disbursements e.g. refreshments, witnesses travel expenses, experts fees etc

Advantages

1. Informal

2. Flexible

3. Cheaper and faster than litigation

4. Creative settlement options possible e.g. renegotiate a new contract on different terms

5. Parties in control of process and outcome

6. Confidential and without prejudice neither business damaged by adverse publicity

7. Negotiations assisted by the mediator

8. Can preserve commercial relationships

Disadvantages

1. Issues may not be clearly defined at pre-action stage

2. Accurate evaluation of the case may not be possible

3. No decision if parties cannot agree

4. No formal process for disclosure and exchange of evidence as in litigation

5. If ADR unsuccessful it may increase time and costs taken to resolve dispute

Types of Mediation Styles

1. Facilitative: mediator facilitates negotiations but gives no personal opinion about the merits of parties cases or predict a court outcome

2. Evaluative: Mediator again facilitates but will also evaluate each side s legal case and offer recommendations for the appropriate range for settlement

3. Transformative : More rarely, mediators focus on improving relationships rather than dispute-solving, thereby leading parties to resolve their own dispute

Important factors to consider when selecting a mediator

Experience, training and accreditation

Expertise in subject matter of THIS dispute

Style evaluative or facilitative

Bound by a code of conduct

Possessing Professional indemnity insurance

Personal attributes e.g. Congenial, persistent, fair, sympathetic, patient, trustworthy, authoritative

Neutral and impartial

Availability

Cost

Methods for appointing a mediator

1. Identify someone in private practice

2. Use an ADR provider eg CEDR, ADR Group

3. Use a court mediation scheme

4. Use the Civil Mediation Online Directory or CMC Directory of accredited providers

Preparing for mediation

1. Selection and appointment of a mediator

2. Agree and sign the Mediation Agreement

3. Agree and book a venue

4. Consider who should attend must include someone who has authority to settle up the maximum value of the claim

5. Prepare and collate the supporting documents:

-agreed core bundle for all AND confidential bundle for mediator only

6. Draft the position statement (lawyer usually)

7. Ensure the client understands the process and is adequately prepared for it

8. Prepare case and negotiation strategy with client

9. Preliminary meeting or other contact with mediator (if necessary

The key supporting documents that should be sent to mediator are

1. Any written contract allegedly breached

2. Relevant documents e.g. delivery notes, despatch notes, documents recording damage, documents relating to quantum etc

3. Relevant correspondence

4. Draft witness statements already exchanged, if any

5. For mediator only: Any confidential information

key core documents, extracts from witness statements etc.

of (joint meeting) (ADR provider may do this instead if ADR provider is used) recent cases where a lawyer was sued for failing to ensure that mediation ended in a legally binding agreement

court look at Without Prejudice communications?

to do so. (CD 5) counsel misleading mediator

It offers time-limited, fixed-fee mediations. The parties must expressly state that they found the mediation provider using the Directory for the fixed fees to apply.

Parties are not charged - wholly funded by the Government. The mediation tends to Scheme is very successful and has a high success rate.

Parties can also refer their case to mediation through the scheme of their own volition. If the parties agree to mediate, CEDR Solve will appoint a mediator from the CAMS panel of mediators. CEDR Solve will then seek to agree a date for the mediation with the parties.

This resource was uploaded by: Darras

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• Overview on Mediation