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Mediation (Advantages (Creative settlement options possible e.g.…

- - - - Background facts
      - Relevant procedural history (if any)
      - Matters agreed
      - Matters disputed (liability and quantum)
      - The party's case on each issue
      - Settlement attempts so far, if any
      - The party's objectives i.e. Desired outcomes of the mediation (in commercial situations you may wan to set the scene i.e. it can be a constructive document)
  - - - Discuss practical matters such as the venue, any special arrangements needed, timing, who will attend, timetable for documents to be provided and exchanged
      - Check who has authority to settle for each party + any limits on that authority
      - Explore the issues
      - Explain process and discuss whether it needs to be varied/personalised to meet needs of the parties
      - Obtain the settlement history
      - Identify any possible obstacles to settlement
      - Check how parties are funded
      - Obtain information about costs
      - Identify the real interests and needs of the parties
      - Precautionary techniques
        
        Venting - results in greater chance of damaging feels being expressed openly
        
        Managing expectations/reality testing - discourage if unrealistic
- - - - Assists the parties to review & accurately the strengths & weaknesses of their case and other side's
      - Challenges factual and legal perceptions
      - Focusing each party's attention on gaps in the evidence, facts they may have difficulty proving at trial, anything which may affect court's assessment of credibility of a witness/expert
      - Helping parties work out their best, worst and most realistic case outcomes if it goes to trial, and costs
    - - Consider consequences of failure to reach settlement
      - What they could achieve if not expending time on the dispute
      - Ask parties to consider wider factors that impact on settlement (e.g. adverse publicity, continuing relationship, damage to reputation)
      - Persuade the parties to evaluate their cases in the same way
      - Focus on personal and commercial interests
      - Seek to persuade 1 party to agree to disclose additional docs to the other side
      - Encourage to explore likely outcome if litigation proceeds to trial
      - Encourage to be more creative in looking at settlement options (e.g. which court wouldn't have the power to order), such as: periodic payments of damages; a public apology; agreement to sell a piece of land to other side for a sum above market value; agree to supply goods for a prescribed period of time for an agreement price lower than market rate
  - - - Sometimes, instead of shuttle mediation, mediator will convene joint meeting
      - Advantage: offers & concessions made by a M are perceived as having more value than if made directly by the other side
      - Before leaving a private meeting M sums up the discussion that has taken place and any offers/concessions/info he is authorised to communicate to other side; M then 'shuttles' between the parties, putting forward offers/concessions/information/responses
      - Disadvantage: process may take longer; parties are not working together to the same degree
    - - Can sub-divide an issue
      - Adjourn mediation to another day
      - Reality testing; direct parties to re-assess risk
      - M can meet with individual members of a team
      - If stalemate is reached. Tactics/strategies to break through, e.g.
      - Help parties to save face
      - Suggest brainstorming settlement options
      - Adjourn to enable a determination or non-binding evaluation from a 3rd party (e.g. an expert) on an issue
      - Suggest that C accepts less money if payment is made immediately, or that D increase offer if payment can be made over a longer period
      - Emphasise risk of trial
      - Suggest other options for closing a final gap, e.g. tossing a coin, one party makes a charitable donation instead of payment to other side
      - If quantum is the sticking point, suggest agreement on liability, leaving quantum to be determined by another ADR method at later date
  - - - Explains what mediation is about and the stages
      - Confirms he is neutral & impartial
      - Introduces himself
      - Explain the confidential nature
      - Explain that M is not there to decide the case but to help the parties reach a settlement
      - Explain the 'without prejudice' rule
      - Explain the voluntary, non-binding nature of the process
      - Check parties have authority to settle
      - Explain the procedure if settlement is reached
    - - Often made by solicitor/counsel, but may be by the parties themselves
      - Is concise, but persuasive; covers all issues
      - Each party outline's their case and what they hope to achieve
      - Usually claimant goes first
      - Rationale: allows parties to air their view; to persuade other side of strength of case; inform M of nature of each party's case; point out weaknesses in other side's case; enable parties to set out remedy/outcome they wish to achieve; give each party their 'day in court'; give other side the option to assess the personalities involved
      - Should be addressed to the other side and to the M
      - Should be addressed to the other side and to the M
      - Should emphasise the client's willingness to settle the dispute
      - At conclusion, M may ask questions to clarify anything that is unclear
    - - If called, will usually happen after their opening statement. M will ask witness for brief summary of their evidence, and M will usually ask any additional questions (not normal form of XIC and XX)
    - - Experts can give evidence at a joint session. If so, either lawyers for the parties can question them, OR M can question them.
    - - M will summarise the concerns of the parties and any areas of agreement and the areas that need to be resolved. Will explain that mediation will move into the next phase; will set out a timetable for the private sessions
      - Possible extension of the plenary session to include the exploration/information stage
    - - Purpose: gives parties privacy to discuss issues & strategy; enables M to meet with parties privately; enables parties to consider proposals from other side and make a considered response; enable M to frame and communicate offers and counter-offers constructively
      - 2 stages take place usually in private meetings: the exploration/information stage; and the negotiating/bargaining stage (although they could take place in joint meetings)
      - Mediator attends the private meetings of each party. They are confidential.
  - - - M may draw up a heads of agreement or a memo of agreed terms and ask the parties to sign it, so that the legal reps of each party can then draw up a formal settlement agreement (perhaps in a Tomlin order) after the mediation
    - - M himself may draft a settlement agreement (where no lawyers), sometimes providing that will only be binding if legal advice is obtained within a certain time.
    - - Summarise the closing positions of the parties
      - May invite the parties simply to adjourn mediator for further info to be obtained / for parties to consider their positions
      - M will record that no settlement reached, may set out reasons
      - M will remind parties of advantages of settlement over litigation
      - M may invite the parties to let their closing offers remain open for a limited period after the mediation
      - If an offer made in the mediation is accepted outside the mediation meeting, it may be regarded as a settlement reached in the mediation, so must be recorded in writing to be binding
    - - Settlement is not likely to be achieved
      - One party wishes to terminate mediation
      - A settlement has been reached on all/some issues, leaving the remainder to be determined by litigation or some other means
      - The mediation needs to be adjourned (e.g. for an expert to carry out a neutral evaluation of issues; for further info to be obtained; if day has ended without settlement but parties feel it could be achieved)
      - Termination and adjournment of mediation
        
        Parties may request an adjournment at any time
        
        Mediation can be terminated at any time by any party or the mediator
- - - - Contact parties
      - Explain, in pre-mediation meeting, or by telephone, nature of mediation process, how parties should prepare, mediators function, role parties will play in process, cost of process
      - Discussion with each party re attendance
      - Check attendees authority to settle
      - Set time table i.e. when do agreements need to be signed and date by which position statements and documents should be provided and exchanged
    - - Control form mediation follows on the day
      - Decide when discussions should take place in joint or private meetings
      - Set agenda for the mediation i.e. suggest order in which issues should be negotiated, and amend it if necessary as the mediation progresses
      - Impose or suggest time limit for delivery of opening statements in initial joint meeting
      - Chair meetings and manage the process
      - Decide whether further joint meetings should take place during negotiation phase in addition to opening joint meetings
      - Prevent interventions by the other side during the opening statement of the opposing party;
      - Ensure parity, as far as possible, in the amount of time the mediator spends in private sessions with each party
      - Control form of questions that one party may put to the opposing party in the opening joint session
- - - - agreement - economic duress
      - Undue influence, misrepresentation fraud etc
      - Mediator sued for breach of contract/professional negligence
      - To determine a professional negligence claim against solicitors
- - - - Dispute Resolution Hearing - Family matters
        
        Where CAP applies in respect of disputes relating to children, under FPR PD 12B, parents are expected to resolve their disputes out of court.
        
        LAA provides public funding to eligible parties to participate in family mediation.
        
        With limited exceptions; application to the court for determination of issues re child can only be made after a MIAM.
        
        Where an application is made to the court, a FHDRA takes place within 4 weeks following issuing application.
        
        At FHDRA, judge will assist parties with the resolution of any disputes by discussing with them nature of dispute; whether it could be resolved by mediation or some other form of ADR.
        
        Pilot scheme set up to assess use of new practices and procedures to allow structured interventions to take place before the FHDRA - aim of helping parties to resolve disputes involving children without need to attend court. Interventions suggested may include mediation (including, where appropriate, a MIAM)
        
        Applications for financial remedies
        
        FDR hearing is WP, confidential and DJ facilitating takes no further part in proceedings.
        
        Judge can become an evaluative mediator, offering an early view on merits of the case
        
        Mandatory FDR hearing where DJ facilitates and assists in open discussion and negotiations with a view to settlement of the dispute
      - Employment Tribunal Mediation Scheme
        
        Not effective
        
        Is there an ongoing relationship between the parties?
        
        Should case should be referred for judicial mediation?
        
        Facilitative
      - Technology and Construction Court (the Court settlement Process)
        
        Mediator (settlement judge) can conduct the CSP in any manner he or she considers appropriate, taking into account the wishes of the parties and the circumstances of the case and the overriding objective
        
        Preliminary Court Settlement Conference will take place to determine the procedure, the venue, duration, and disclosure to be made by the parties (and provided to the judge) in advance of the CSP
        
        Private and confidential, without prejudice, voluntary, non-binding process
        
        Unless the parties otherwise agree, during the CSP, the settlement Judge may communicate with the parties together or separately, including private meetings at which the settlement judge can express views on the dispute. A party can request a private meeting with the settlement Judge during the process.
        
        The settlement judge will not disclose information given to him or her in confidence by one party to the other party or to the person at any time.
        
        If the CSP does not lead to a settlement, the parties can ask the Settlement Jude to provide them with a written assessment on some or all of the issues in the dispute, the likely outcomes of the case, and what would be an appropriate settlement.
        
        Nothing said during the CSP shall prejudice the position of the parties in the litigation or subsequent arbitration or adjudication.
        
        Parties shall bear their own costs and share equally in the court costs of the CSP, unless otherwise agreed.
        
        The settlement judge will perform no further 'judging' role in the litigation and nor can he or she be called as witness in any proceedings arising out or connected with the CSP and also has the same immunity from suit as judges in court proceedings.
      - How does it differ from main court scheme?
        
        Judges actually perform the role of mediator
        
        In the court schemes (CA, Small Claims Court Schemes, the County Court Mediation Pilot Schemes), the case is referred to an independent mediator - either one who is employed by the Courts and Tribunals Service (in the case of the Small Claims Scheme) or and independent ADR Provider (Such as CEDR in the CA scheme.
    - - ADR providers servicing the Directory are registered by the CMC
      - Offers time limited, fixed-fee mediations
      - Enables parties to find ADR providers in their local area
      - parties must expressly state that they found the mediation provider using the Directory for the fixed fees to apply
      - Fixed fees depend on the value of the claim
      - Difference to arrangement directly by the parties and the mediator
        
        Time-limited mediations
        
        Mediations through the CMOD/Court Schemes are arranged quickly (mediation often arranged within 2 weeks of referral
        
        Fixed fee/low cost
    - - Court of Appeal Mediation Service
        
        The scheme is administered by CEDR Solve
        
        The mediators on the CAMPS Panel are all accredited by a recognized training provider and are sufficiently experienced. Members of the panel are regulated by the Court of Appeal.
        
        Revised and re-launched in 2007 and again in 2012
        
        The single judge who hears the application for permission to appeal (or who gives directions for the appeal where permission has already been granted) will consider whether the case should be mediated. If so, it will be referred to CAMS, and CEDR Solve will contact the parties and invite them to participate in mediation.
        
        First set up on a voluntary basis in 2003
        
        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
        
        The parties themselves find and pay for a suitable venue
        
        The mediator will usually be facilitative (although the mediator may be willing to provide an evaluation if requested by the parties) but can provide an evaluation if required
        
        Cost
        
        If the claim is more than £1 million, or the case is exceptionally complex. CEDR may propose a higher fee for the mediation, but the court has to approve this.
        
        If a party has no public funding, and is otherwise of limited means, they can apply to the court for the fee to be waived
        
        The fixed fee covers 4 hours of preparation time + a mediation meeting of 5 hours duration and CEDR Solve's administration costs. Extra hours are charged at the rate of £125 + VAT per party per hour.
        
        Mandatory referral for consideration of mediation under the CA Mediation Pilot scheme
        
        Time-limited, fixed fee mediation (currently £850 + VAT per party for the mediator + venue costs and parties usually pay their own legal costs).
        
        Applies to all contract and personal injury claims and clinical negligence claims under £250,000.
      - Birmingham, Manchester & Central London County Court Mediation Information Pilot Schemes
      - The Mayor's & City of London County Court Scheme
        
        time limited
        
        administered by City Disputes Panel
        
        fixed cost
        
        Takes place at IDRC
        
        Cost
        
        £275 + VAT; 3hrs for claims up to £15,000 & £425 plus VAT for 4hrs
        
        For claims greater than £50,000 4 hrs = £550 plus VAT per party
        
        If extends beyond fixed time limit, any additional fees must be agreed to med admin
        
        Efficient 2/3rds of disputes resolved
      - The Small Claims Court Service
        
        All small claims cases are automatically referred for mediation (although the parties may decline to mediate) except; road traffic accident; personal injury or housing disrepair claims; any claim in which the sum claimed exceeds £10,000.00; any claim in which any party to the proceedings does not agree to referral to the Mediation Service.
        
        Parties are not charged (provided they have issued proceedings and paid the court fee) - wholly funded by the Government.
        
        Mediators employed by the Government and are attached to the court
        
        The mediation tends to take place by telephone and will usually last no more than 1 hour.
        
        Operates in the CC and deals with money claims less than £10,000
        
        The Small Claims Scheme is very successful
        
        Has a high success rate
- - - - Focus on the other party's interests and further explore issues and generate options
      - Consider if there is anything else that needs to be discussed openly or if there is information to be shared
      - Have a break so as to be able to continue thereafter with more understanding, patience or respect
      - Discuss proposals and options that fulfil stakeholders' needs, especially children.
      - Consider new, or unexpected information
      - Sit quietly and think about their suggestions and reflect on the other party's counter proposals
      - Vent and/or save face
      - Help each party to develop insight, get back in touch with their goals, and assist them to take responsibility for their part of the dispute and/or suggestions for solutions to existing problems.
      - Separate emotions from factual information
    - - Ignore or not work through the list of issues or agenda systematically
      - Call a private session when it may be culturally inappropriate to be alone in the same room with one of the parties
      - Get over-involved in the solution or be drawn in by one or both parties
      - Become triangulated or use his or her power or knowledge inappropriately
      - For the mediator to call caucus too early in the process or respond to a request by one part to be seen privately and not scheduling this break in the process when appropriate
      - Discover confidentiality or not see one of the parties privately
      - React to one of the parties and possibly lose even-handedness or become biased
- - - - Mediator or persons associated with mediator have personal or financial interests in the outcome of the mediation
      - Acted for any of the parties at any time in relation to the issues that may need to be considered in the mediation
      - A therapist/client or counsel or client relationship has existed at any time, in relation to any matter, between one of the parties and the mediator
      - Mediator or a member of his organisation has previously acted for a third party whose interests may conflict with those of either party in the mediation (e.g. previously acting for trustees where one of the parties is a beneficiary under the trust).
      - Mediator aware of circumstances or personal or other reasons which make it impossible or difficult for the mediator to act impartially
      - Termination
        
        Parties can withdraw at any time without the provision of reasons
        
        Terminate mediation if settlement is reasonably believed to be unenforceable of illegal, or that continuing mediation unlikely to result in settlement
  - - - Consequences
        
        May be reported to her/his professional body and may face disciplinary proceedings
        
        Settlements reached as a result of the provision of misleading information might be impeached on the grounds of misrepresentation
        
        Stop mediation if party misleads
        
        Barrister may face professional negligence action
  - - - Mediators should not be biased
- - - - Necessary for overriding considerations of public policy
      - Necessary to implement or enforce the MSA
      - All parties agree
    - - If proceedings issued - made by a Part 23 claim form
      - Mediator must be made a respondent to the Part 23 application; or a party to the Part 8 Claim form)
      - If proceedings not issued - made by a Part 8 claim form
      - The evidence in support must state the grounds relied on.
  - - - Be prepared to cover more during the joint sessions
      - Be prepared for greater likelihood of expert evidence
      - Set aside more time for meetings
      - Build in extra time for lawyers to finalise the written settlement agreement, which takes longer when parties are geographically separated
      - Consider appointing a team of mediators to overcome parties' linguisitc and cultural differences, to master all technical/legal considerations
  - - - Ensures balance between mediation and judicial proceedings
      - Preserves confidentiality of mediation
      - Facilitate access to mediation & encourage its use
      - Standardise the effect of mediation on limitation and prescription periods
      - Recognise and enforce agreements resulting from mediation across all member states
      - Encourage training of mediators
      - Encourage effective quality control over mediation services
      - Provide information to the public on how to contact mediators
    - - Protect the confidentiality of mediation
      - Ensure that a limitation or prescription period cannot expire during the mediation process so as to prevent a party from court or arbitration proceedings
      - Encourage provision of information to the public about mediation
      - Ensure quality of mediation and training and continuous professional development of mediators
    - - Applicant; file MSA & Evidence of consent from the other parties with the Application Notice
      - For the requirements relating to service on the parties - PD 78, Para 22.1 and 22.2
      - Proceedings NOT issued - apply by Part 8 Claim Form (as modified by CPR r 78. 24 and PD 78)
      - IF requirements satisfied, MSEO made by court without a hearing; CPR r. 78.24(8)
      - Proceedings issued- apply by Part 23 Application Notice
      - Party default on the MSEO, other party can then apply for the MSEO to be enforced in the same way as any other judgment or order of the court
    - - Reg 10 and CPR 78.26 - 78.28 set out the grounds and the procedure for obtaining a court order that a mediator or a mediation administrator must give or disclose mediation evidence.
      - The grounds: r 78.26(3); All parties agree; The evidence is necessary for overriding consideration of public policy; evidence relates to the mediation settlement, and disclosure is necessary to implement or enforce the mediation settlement agreement.
      - In UK - Reg 9: A mediator or a mediation administrator has the right to withhold mediation evidence in civil and commercial proceedings and in arbitration. Mediation evidence is defined by Reg 8 and CPR r 78.23(2) as "evidence arising out of or in connection with a mediation process."
      - Art. 7: MS must ensure that mediators/involved in admin of mediation process compelled to give evidence in civil or commercial judicial proceedings or Arb re info arising out of or in connection with a mediation process, except where; parties agree otherwise; it is necessary for overriding considerations of public policy, particularly to ensure protection of children or prevent physical or psychological harm to any person
    - - Art. 8 protects judicial or arbitration proceedings against expiry of limitation or prescription periods during the mediation
      - s. 33A LA 1980: Where a time limit under the LA applies, and a mediation in relation to the dispute starts before the time limit expires and, if not extended by s. 33A, the time limit would expire before the mediation ends or less than 8 weeks after it ends, then for the purposes of initiating judicial proceedings or arbitration, the time limit express instead at the end of eight weeks after the mediation ends.
    - - Appropriately, mediator team will convene private meetings of the parties to explore issues, and commence bargaining process by way of statute diplomacy
      - EE will feature to a greater extent. Mediator will hold expert meetings on an issue and allow parties to question them if this is likely to assist in the resolution of a particular issue
      - In main mediation meetings, mediator more likely to encourage parties to explore issues in joint meetings and there is likely to be an extended plenary session for that purpose
      - Time of the essence in bargaining phase because of international parties' location. Unlikely that settlement agreement drawn up at conclusion of mediation because agreement will be subject to review.
      - Mediation will be resumed at a different time.