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

Prepare and collate documents; agreed bundle; confidential bundle for mediator only

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

Ensure that the client understands the process and is adequately prepared for it

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

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

Explain process and discuss whether it needs to be varied/personalised to meet needs of the parties

Represents the interests of mediators/mediation providers

Trusted authority for mediation in England and Wales

ADR provider must meet (and set out details in the application form, supported by a Statement of Truth) minimum requirements set by the CMC about;

Only open to ADR providers and bodies not individuals

Compliance with the EU Model Code of Conduct for Mediators or a similar Code

Mentoring and supervision and CPD scheme for mediators

Certify that they comply with the training standards laid down by CMC and meet similar requirements imposed on RMPs

If the application is accepted the individual will become a Registered Mediator (RM)

ADR providers servicing the Directory are registered by the CMC

parties must expressly state that they found the mediation provider using the Directory for the fixed fees to apply

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

Mediations through the CMOD/Court Schemes are arranged quickly (mediation often arranged within 2 weeks of referral

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.

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.

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 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

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.

Court more likely to find a refusal to mediate to be unreasonable if court has ordered/referred the parties to mediation

Adverse cost order can be made against a successful party, who refuses to take advantage of mediation arranged through the Court of Appeal Mediation Scheme

Whether costs of ADR would be unreasonably high

The extent to which other settlement methods have been attempted

The merits of the case (a belief that case is very strong, if justified, may be a good reason for refusing ADR

Delay (less likely to be unreasonable to refuse ADR where it is proposed close to trial)

Whether ADR would have a reasonable prospect of success

Whether an ADR order had been made by court (if so, it is unlikely to be unreasonable not to pursue ADR)

Difficult to administer - need ADR provider to help with administration

Need to appoint parties to represent those whose claims raise similar issues of liability or quantum

Can be tailored to meet the needs of the dispute/parties

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.

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)

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

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.

Regulates the relationship between the parties themselves and between the parties and the mediator

By signing it, the parties demonstrate a degree of commitment to the mediation

Contract by which the parties appoint the mediator; sets out important matters governing the mediation

Practical matters such as the time, date and venue for the mediation

A warranty that representatives of the parties attending the mediation have authority to settle the case

Preparation and exchange of documents for the mediation

Agreement will not be final and binding on the parties until it is reduced to writing an signed by the parties

Costs and fees of mediation and the liability of the parties for those costs

Agreement by the parties not to call the mediator in later court proceedings

Costs follow the event i.e. the losing party must pay the costs of the winning party (in addition to their own costs)

Loser has a burden of proof to show that the winner acted unreasonably in refusing ADR and therefore should not have their costs paid by the loser

Venting - results in greater chance of damaging feels being expressed openly

Managing expectations/reality testing - discourage if unrealistic

In International disputes directly enforce mediation settlement by making application to the court for MSEO pursuant to CPR r. 78.24

Must meet requirements of r 78.24 but deemed consent provisions in r 78.24(7) must be satisfied.

Sue on settlement agreement (takes effect as a contract between the parties) & apply to enforce any judgment in the usual way; or

CPR r 78.24 - Enforcement of mediation settlements can be made (with parties' unanimous consent), and by applying via a Part 23 (if proceedings already issued) or via a Part 8 procedure (as modified by CPR r 78.24 and PD 78) if there are no existing proceedings.

Party applying for enforcement must file certain specified documents with the Application Notice or the Part 8 Claim Form (see CPR r. 78.24).

Service - PD 78, para 22.1 and 22.2

File mediated settlement agreement (CPR r. 78.24(3) & evidence that the other parties to the mediated settlement agreement explicitly consent to the application (if relevant) OR evidence which establishes deemed consent (CPR r. 78.24(4) and (7).

Copy of the claim form, the mediation settlement agreement and evidence of explicit consent must be served on all parties to the settlement agreement who are not also parties to the application (PD 78, Para 22.2)

Generally, Court make an MSEO without a hearing (CPR r. 78.24 (8)).

In the event of default, the parties can then apply for this order to be enforced in the same way as any other judgment or order of the court

Disclosable evidence is; evidence arising out of or in connection with the mediation process; CPR r 78.23(2).

It could include documents that arise out of or are in connection with the mediation e.g. position Statements, draft agreements etc, or oral evidence as to what occurred during the mediation

Court can order disclosure of evidence in the possession of the mediator

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.

s. 33A - where a time limit under the Limitation Act applies, in whole or in part to a cross border dispute, 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 purpose of initial judicial proceedings or arbitration, the time limit expires instead at the end of eight weeks after the mediation ends.

By the operation of s. 33A(4), if a time limit has been extended under s. 33A, but a second mediation starts before that extended time limit expired, and if not extended by s. 33A(2) and (3), the extended period would expire before the second mediation ends or less than eight weeks after it ends, then the time limit will expire instead at the end of eight weeks after the second mediation ends.

s. 5 Limitation Act 1980 - an action founded on contract is statute barred after the expiration of 6 years from the date the cause of action occurred.

There is no limit to the number of times the limitation period could be extended by virtue of the operation of s. 33A (2), (3) and (4).

Mediation avoids difficult issues of which court has jurisdiction/which country's law applies (it can potentially do this because people can be in different countries, yet this is not necessarily all good because if you want to enforce you have to default to the courts of one country). Thus, you should nonetheless agree which courts are going to potentially apply when there is a problem.

A team of mediators can be appointed to overcome differences in language/expertise/diversity

Parties can chose where mediation takes place

The process can be devised to meet the needs of the parties: mediators travelling between countries for private meetings and joint meeting in an agreed place.

Parties can maintain great control over the process

Be prepared to cover more during the joint sessions

Be prepared for greater likelihood of expert evidence

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

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 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.

EU Mediation Directive, Art 7: member states should ensure that mediators should not be compelled to give evidence regarding information arising out of mediation

However, exceptions where (1) all parties agree, or (2) there are public policy considerations that require the mediator to give evidence

Mediation agreement will also usually contain a clause by which the parties agree not to call the mediator ( or any of his employees/agents) as a witness or expert or consultant in any proceedings

Court will override the mediation agreement, and require a mediator to give evidence, if in the 'interests of justice' to do so

Could being a claim against M for breach of contract or in negligence if he acted in a way not consistent with duty of care and skill. E.g. if M gave the parties legal advice that was incorrect; negligently evaluated their claim; brought undue pressure or misrepresented anything to the parties

Such claims are difficult to prove; will raise difficult issues of causation and loss

M acts under a contract with the parties - there is probably an implied term of 'reasonable care and skill' in performing his services

If a settlement was reached as a result of undue pressure exerted by M - may provide grounds for overturning the settlement agreement.

It is possible that disciplinary proceedings could be brought against a Mediator who acts improperly or not in accordance with the code of conduct adopted by the ADR service provider by whom he has accredited/appointed

Explain that M is not there to decide the case but to help the parties reach a settlement

Often made by solicitor/counsel, but may be by the parties themselves

Each party outline's their case and what they hope to achieve

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

At conclusion, M may ask questions to clarify anything that is unclear

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.

Probing underlying issues

Assists the parties to review & accurately the strengths & weaknesses of their case and other side's

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

Bargaining stage can be conducted on basis of either simultaneous or sequential exchange of offers

M will help the parties move from a positional to a principled negotiating strategy, so a constructive dialogue can take place

M will confirm the terms agreed; ask the lawyers to draw up the settlement agreement; normally mediation agreement sets out expressly that no settlement is binding unless recorded by the parties and signed by them.

Lawyers an mediators must be careful in drawing up settlement terms in settlement agreement: could be claims in negligence if (1) settlement is not achieved because the settlement agreement was not drafted with reasonable care & skill; or (2) if client was not properly advised on the effect of any agreement reached at mediation or failing to advise that an agreement is not binding; If clauses are not drafted precisely, subsequent litigation may be brought to construe the terms and effect of the settlement agreement

Once final terms are drafted, M will convene a joint final meeting of all parties to read and sign agreement

Mediation can be terminated at any time by any party or the mediator