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ADR > 03 - Mediation > Flashcards

03 - Mediation Flashcards

1
Q

Mediation Styles

A

Facilitative

Evaluative

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2
Q

Facilitative

WHAT

A 
Focus = Interests; Needs; NO Opinion
Mediator = Explore (Options); Formulate (DOC)
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3
Q

Evaluative

WHAT

A 
Focus = Legal Merits; Opinion
Mediator = Assessment
NOT = Determination; Binding
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4
Q

Evaluative

Requirements MUST

A

Joint Request

Agreement = Both Parties; Mediator

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5
Q

Lawyer Preparation

Considerations

A 
Objectives
Analysis
Evaluation
Costs Review
Arguments
Value of Trial
Clarification
Stage of Proceedings
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6
Q

Mediation Preparation

Considerations

A 
Mediation Agreement
Pre-mediation Meeting
Documents
Attendees
Multi Party Dispute
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7
Q

Mediation Agreement

WHAT

A

Enforceable Contract = Parties; Mediator

Signed

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8
Q

Mediation Agreement

Clauses

A 
Parties
Mediator
Timetable
Venue
Procedure
Issues
Information = Without Prejudice
Documents
Authority
Settlement = Non Binding
Costs
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9
Q

Mediation Agreement

Authority TYPES

A

Subject to Authorisation

Direct = Disclose; Figures; Negotiation; Settlement

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10
Q

Venue

Requirements

A

Neutral Location
Three Rooms
Working Hours
Cost

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11
Q

Mediation Preparation

Documents

A

Core Bundle

Confidential Bundle

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12
Q

Core Bundle

Contents

A 
Position Statement
Supporting Documents
Correspondence
Case Management Orders
Chronology
Dramatis Personae
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13
Q

Supporting Documents

WHAT

A

Contract
Witness Statement
Expert Report

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14
Q

Confidential Bundle

Contents

A

Objectives
Legal Opinion
Offers AND Concessions

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15
Q

Position Statements

Purpose

A

Informal Document

Brief = Mediator; Other Party

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16
Q

Position Statements

Contents

A 
Without Prejudice
Parties
Background
Procedural History
Matters = Agreed; Disputed
Issues = Legal; Factual
Evaluation = Evidence; Strength; Weakness
Statement = Remedy; Reason
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17
Q

Position Statements

WHEN Required

A

Agreement

14 days < Mediation

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18
Q

Mediation Preparation

Attendees

A 
Client
Representative
Lawyer
Witness of Fact
Expert
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19
Q

Attendees

Expert WHEN

A

Technical

Individual OR Joint

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20
Q

Multi Party Dispute

Factors

A

Number = Sub-group; Categories
Management = Information; Time
Confidentiality
Funding

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21
Q

Multi Party Dispute

MUST

A

Identify Groups
Timetable AND Order of Issues
Disclosure

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22
Q

Mediation Stages

Four

A
  1. Opening
  2. Exploration
  3. Negotiation
  4. Closing OR Settlement
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23
Q

Opening Stage

Topics

A 
Mediator Introduction
Settlement
Opening Statements
Witness AND Expert
Mediator Closing
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24
Q

Mediator Introduction

Contents

A

Profession
Experience
Role = Neutral; F or E
Information = Confidential; Without Prejudice

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25
Q

Mediator Introduction

Settlement

A

Authority
Voluntary
Non Binding

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26
Q

Opening Statements

Contents

A

Refer = Position Statement

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27
Q

Witness AND Expert

WHAT

A

Summary of Evidence
Questions = Mediator; Lawyer
NOT XIC or XX

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28
Q

Mediator Closing

Contents

A

Summary = Matters; Issues; Evaluation; Remedies

Next Stages = Exploration; Negotiation

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29
Q

Exploration Stage

Purpose Closed Meetings

A 
Analysis = Issues2
Evaluation = Evidence; Figures; Legal Merits; Success
Consideration = Arguments; Position; Proposals
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30
Q

Exploration Stage

Purpose Open Meetings

A

Examine NEW Issues

Exchange = Information

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31
Q

Closed Meetings

Mediator Role

A

Probe Issues
Reality Check
Settlement Options = Creative; Court NOT Order

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32
Q

Negotiation Stage

Caucuses STEPS

A

Order = List of Issues
Propose (DOC)
Consider (DOC)

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33
Q

Negotiation

Mediator Role

A

Shuttle Diplomat OR Broker
Communicate = Offers; Concessions
Reframe = Demands

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34
Q

Negotiation

Deadlock - Mediator Role

A

Re-assess = Case
Re-consider = Arguments; Position; Proposals
Evaluative Opinion

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35
Q

Negotiation

Deadlock - Options

A

Adjourn
Alternative = Expert Determination
Litigation

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36
Q

Closing Stage

Settlement - Mediator Role

A

Draft = Memorandum of Agreed Terms
Record = Agreed Issues; Settlement
MUST Signed

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37
Q

Closing Stage

NO Settlement - Mediator Role

A 
Statement = Adjourned OR Concluded
Record = Reasons; Agreed Issues; Suggestions
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38
Q

Mediator

Selection Method

A

ADR Provider
Direct
Recommendation = Institute; Trade

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39
Q

Mediator

Selection Factors

A 
Mediation Style = F or E
Neutral
Expertise = Profession
Experience
Accreditation
Cost
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40
Q

Mediator

Accreditation Benefits

A

Code of Conduct
Complaints Procedure
Training
Indemnity Insurance

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41
Q

Mediator Role

A

Neutral
Structure Process
Assist Presentation
Intermediary

42
Q

Mediator

Intermediary

A

Defuse Conflict
Reframe = Demands
Communicate = Offers; Concessions
Assist Evaluation = Strength; Weakness

43
Q

Mediator

Role Function

A

Agreement

NOT Determination

44
Q

Mediator

Claim Against WHEN

A

Breach Duty
Reasonable Care AND Skill
Improper Conduct

45
Q

Mediator

Claim Result

A

Sue for Damages
Discipline ARD Provider
NOTE Exclusion Clause

46
Q

Advocate Role

A

Advocate
Advice
Assist Mediator
Drafting

47
Q

Advocate Role

Advocacy

A

Opening Statement

48
Q

Advocate Role

Style

A

Non Adversarial

Purpose = Settlement; NOT Win

49
Q

Advocate Role

Advisory

A

Manage Expectations
Understands = Procedure; Agreement; Settlement
Legal Position = Analysis; Evaluation
Strategy = DOC

50
Q

Advocate Role

WITH Mediator

A 
Persuade = Strength; Weakness
Assist = DOC
51
Q

Advocate Role

Drafting

A

Settlement = Draft Agreement

NO Settlement = Reasons; Agreed Issues; Suggestions

52
Q

Confidentiality

Protected Information

A

Disclosed Information
Mediation Process
NOT Mediation Occurred

53
Q

Confidentiality

NOT Protected

A

Enforce Binding Agreement = Terms; Settlement Concluded

54
Q

Confidentiality

Enforcement

A

Court Order = Injunction

55
Q

International Mediation

Advantages

A

National Experts

Neutral Jurisdiction

56
Q

International Mediation

Disadvantages

A

Cultural Differences
Time
Cost

57
Q

EU Directive in UK

Implementation

A

Cross-Border Mediation (EU Directive) Regulations 2011

58
Q

EU Directive

Provisions

A 
Mediation Recourse
Mediator Training
Confidential
Enforceable
Limitation Period NOT Expire
59
Q

International Mediation

Enforcement CPR

A

CPR 78.24

Mediation Settlement Enforcement Order (MSEO)

60
Q

International Mediation

Enforcement Procedure

A

Part 23 Procedure = Proceedings Issued

Part 8 Procedure = Proceedings NOT Issued

61
Q

International Mediation

Enforcement Requirements

A

Settlement Agreement
Consent ALL Parties
Currency Conversion Certificate

62
Q

International Mediation

Failure Consent

A

Judgement

Court Order = Award Enforceable

63
Q

International Mediation

Enforcement Result

A

NO Hearing

Court Order = Award Enforceable

64
Q

International Mediation

Limitation Act 1980

A

Suspend Limitation Period
IF Expired = Extends Period 8 weeks
NO Limit of Extensions

65
Q

Mediation

Required Regulation

A

Independent Body

Professional Standards

66
Q

Mediation

Independent Body

A

Code of Conduct

Complaint Procedure

67
Q

Mediation

Professional Standards

A

Uniformity = Training; Accreditation

Indemnity Insurance

68
Q

Civil Mediation Council (CMC)

WHO

A

Independent Body
Recognised Authority
Represent = Providers
Promote = ADR; Standards; Best Practice

69
Q

Civil Mediation Council (CMC)

Schemes

A

Provider Accreditation Scheme

Individual Membership Registration Scheme

70
Q

Provider Accreditation Scheme

Accreditation

A

Met Standards
Met Requirements
Insurance
Paid Fees

71
Q

Provider Accreditation Scheme

Requirements

A

EU Model Code of Conduct
Complaints Procedure
6 Member Panel

72
Q

Provider Accreditation Scheme

Member Panel Requirements

A 
Assessed Training Course
12 months Experience
Feedback Logbook
CPD = Professional Development
Indemnity Insurance
73
Q

Individual Membership Registration Scheme

WHAT

A

Registration

NOT Accreditation

74
Q

Individual Membership Registration Scheme

Conditions

A

Accredited Training Course = 40 hrs
CPD = Professional Development
Indemnity Insurance

75
Q

Conciliation

WHAT

A

Assisted Negotiation AND Settlement

TYPES = Employment; Family

76
Q

Conciliation

Employment WHO

A

ACAS (Advisory, Conciliation and Arbitration Service)

77
Q

Conciliation

Employment STEPS

A 
1. ACAS Mandatory
Contact
Advice
Limitation Period Suspended
Agreement
2. Failure
a. Early Conciliation Certificate
b. Tribunal Hearing
78
Q

Conciliation

Family WHO

A

CAFCASS (Child AND Family Court AND Support Service)

79
Q

Conciliation

Family WHEN

A

Dispute Over Children
Contact
Residence

80
Q

Conciliation

Family STEPS

A
  1. First Hearing Dispute Resolution Appointment
    a. Agreement
    b. Mediation
  2. Failure
    a. Court Hearing
81
Q

Judicial Mediation Schemes

WHAT

A

Court Mediation

Mediator = Judge

82
Q

Judicial Mediation Schemes

TYPES

A

Employment
Family
Technology AND Construction

83
Q

Judicial Mediation Schemes

Employment STEPS

A
  1. CMD (Case Management Discussion)
    a. Selection
    b. Parties Consent
  2. Judicial Mediation = Independent
  3. Failure
    a. Tribunal Hearing
84
Q

Judicial Mediation Schemes

Family STEPS

A
  1. Mandatory Meeting
    a. MIAM (Mediation Information Assessment Meeting)
    b. Agreement
  2. Proceedings Issued
  3. First Hearing Dispute Resolution Appointment
    a. Agreement
    b. Judicial Mediation
  4. Failure
    a. Court Hearing
85
Q

Judicial Mediation Schemes

Technology AND Construction STEPS

A
  1. Judicial Mediation

2. Court Hearing

86
Q

Judicial Mediation Schemes

Advantage

A

Judge = Legal Expert
Written Assessment
Confidential
Cost

87
Q

Judicial Mediation Schemes

Disadvantage

A 
Judge = Evaluative NOT Facilitative
Judge = NOT Neutral; MAY Influence
88
Q

Court Mediation Schemes

WHAT

A

Court Mediation

Mediator = Independent (Court Employee; ADR Provider)

89
Q

Court Mediation Schemes

TYPES

A

Small Claims
Court of Appeal
Civil Mediation Online Directory

90
Q

Court Mediation Schemes

Advantages

A 
Mediator = Independent
Time = Arranged < > 2 weeks
Cost = Fixed AND Low Fee
91
Q

Small Claims Scheme

WHAT Claims

A

Claim Value = < £10k
NOT RTA
NOT PI
NOT Housing

92
Q

Small Claims Scheme

STEPS

A

Referral IF Agree
Mediation = Free; Telephone
Mediator = HMCTS Employee

93
Q

Small Claims Scheme

IF Success

A

Proceedings AUTO Stayed

Permission = Discontinue; Dismiss; Judgement

94
Q

Small Claims Scheme

IF NO Success

A

Proceedings Continued
Directions Questionnaire
Hearing < 4 weeks

95
Q

Court of Appeal Scheme

STEPS

A 
Referral = Parties OR Court
Mediation = 3 months > Referral
96
Q

Court of Appeal Scheme

Mediator WHO

A

Selected from CAMS Panel
‘Court of Appeal Mediation Service’
Training Provided

97
Q

Court of Appeal Scheme

Cost

A

£850+VAT per Party

PLUS Venue

98
Q

Civil Mediation Online Directory

Operator

A

Ministry of Justice

99
Q

Civil Mediation Online Directory

Purpose

A

Low Cost Mediation IF Coupon

100
Q

Civil Mediation Online Directory

Cost

A 
£50+VAT = < £5k
£300+VAT = £5-15k
£450+VAT = £15-50k
Negotiation = £50k+

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