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Mediation (part 2) - Coggle Diagram
Mediation (part 2)
Advantages of mediation
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Can address all issues in the disputes, including complex ones
Issues with mediation
If mediation is unsuccessful, results in waste of time/costs
Abuse of mediation :
- Try to exploit weakness of parties
- Delay the process of dispute resolution and increase everyone's costs unnecessarily
- Some cases may not be successfully mediated e.g. where parties may have a bad history between them
- Mediation is non-binding and there's no way to force parties to accept a settlement during mediation
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Basics
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ADR
- ADR provides other methods of resolving disputes between parties who would otherwise have to litigate their dispute
- Aim of ADR is to provide practical and effective solution to disputes rather than parties compared to obtaining it in court
Mediation
- Involves appointment of a neutral mediator to help parties in a dispute reach an agreement where all sides think acceptable
- Mediator must be trusted by both sides to resolve dispute fairly + in good faith
- Mediator can meet parties separately as well as together to create mutually-agreeable solutions to the dispute between them
- If mediation is successful, the agreed-upon solution is written down and signed by both parties hence forming a legally binding contract
- Conciliation and negotiation are similar in form and methods to negotiation
Mediation & Courts
Mediation has been more popular:
- To prevent waste of judicial time and public resources judges can use mediation to resolve disputes rather than using litigation
Dunnet v Railtrack plc (2002)
- CA refused to grant costs to winning party because it disregarded a suggestion by the judge on mediating the dispute
Shirayama Shokusan v Danovo Ltd (2003):
- In a landlord-tenant dispute, courts held that it has power to order an unwilling party to go for mediation
Courts are insensitive:
- Unsuitable for divorce proceedings and disputes over property and children
- Courts are also adversarial in nature - the system aggravates the hostility between parties
- It is more suitable for closed-door mediation
- Parties must provide evidence that MIAM was attended before proceeding litigation
- Involves a independent mediator that meets parties and discuss whether mediation is suitable to resolve dispute
Family Law Act 1996, Part II:
- Makes Mediation Information and Assessment meeting (MIAM) compulsory before proceeding to litigation for all parties in a family law dispute involving children + properties
- You don't need MIAM if your dispute is not involving children/property
Exceptions to mediation:
- Depends on the facts of the case, particularly whether mediation will likely to have succeeded in the circumstance and also whether other forms of negotiation have been considered - R (on the application of Crawford) v University of Newcastle-upon-Tyne (2014)
- To persuade a court to penalise the winning party in costs for refusing, burden of proof is on the losing party to show that there's a good prospect of mediation being successful - Halsey v Milton Keynes General NHS Trust (2004)