5. ADR: Non-Adjudicative Options

Question 1

What is early neutral evaluation?

Answer 1

it is a private, non-binding assessment and evaluation of the facts, evidence and/or legal merits of one or more of the issues in a case

Question 2

What is the difference between ENE and mediation?

Answer 2

mediation is a facilitative process, whilst ENE is an advisory and evaluative process. It is the independence of the evaluator that distinguishes ENE from mediation

Question 3

When is ENE most effective?

Answer 3

when it is undertaken at an early stage in a dispute

Question 4

Can ENE take place in the court system?

Answer 4

Yes but this is usually carried out by a judge.

Question 5

Can ENE take place outside of the litigation process?

Answer 5

Yes

Question 6

Is ENE private?

Answer 6

Yes, it is a private and confidential process and the evaluator must be impartial.

Question 7

At what stage should ENE be employed?

Answer 7

in the early stages of a dispute, but it can be utilised at any stage.

Question 8

In what circumstance is ENE particularly advisable?

Answer 8

when one or more of the parties has taken an unrealistic and entrenched view on the issues and would benefit form an assessment from an independent person

Question 9

Why is ENE useful?

Answer 9

it can enable each party to appreciate the strengths and weaknesses of the case which can encourage and lead to settlement.

Question 10

In what manner will the evaluation be conducted?

Answer 10

this will be decided by the evaluator, but the procedure will be fixed after consultation with the parties.

Question 11

What is a benefit of ENE?

Answer 11

the process is flexible and the parties can tailor it to meet the needs of the case. The parties can control the amount and form of information provided to the evaluator and identify issues that they want evaluated.

Question 12

How many parties need to instruct an evaluator?

Answer 12

the evaluator can be instructed by one or both parties.

Question 13

When will time limits be set in ENE?

Answer 13

At the preliminary hearing (only if the evaluator chooses to have one)

Question 14

What is the procedure for ENE?

Answer 14

(1) each instructing party makes written submissions to the evaluator, together with such evidence and supporting documents as they seen fit.
(2) the evaluator evaluates the evidence and the law and produces a recommendation setting out his or her assessment of the merits of the dispute and the likely outcome of it.

Question 15

Can the parties have an oral hearing in ENE?

Answer 15

Yes this is something that the parties and evaluator can agree on.

Question 16

Is the evaluation binding?

Answer 16

No, it is not the parties do not have to accept it.

Question 17

What will the procedure be where a judge undertakes the ENE?

Answer 17

(1) the judge will consider the legal and factual issues, evaluate the evidence and any submissions of the parties, and issue a non-binding recommendation or evaluation.

Question 18

Can the court order ENE?

Answer 18

Yes, pursuant to CPR 3.1 even if one party does not consent to it.

Question 19

Can ordering an ENE hearing under CPR 3.1 be deemed to obstruct the parties’ access to the courts?

Answer 19

No because ENE hearings are simply part of the court process

Question 20

Are judicial ENE’s persuasive?

Answer 20

Yes because they give the parties an indication of the likely outcome at trial.

Question 21

What does conciliation mean?

Answer 21

it has no single agreed meaning, but it normally involves a neutral third party. The conciliator might facilitate a negotiation between the parties

Question 22

What do the most important conciliation processes have?

Answer 22

a statutory basis, and they involve conciliators who are appointed by an outside body rather than the parties.

Question 23

Is conciliation confidential?

Answer 23

Yes

Question 24

What issues can be covered in a compromise agreement (ie following conciliation)?

Answer 24

any of the issues brought in the conciliation and issues and interests going outside of the scope of the original dispute.

Question 25

What disputes are suitable for mediation?

Answer 25

all disputes which raise issues capable of being g resolved by negotiation.

Question 26

Can parties contractually bind themselves to resolve a dispute by using mediation?

Answer 26

Yes

Question 27

When might mediation not be appropriate?

Answer 27

in debt claims where there is no sustainable defence as it may be more advantageous in such cases to issue proceedings and apply for summary judgment

Question 28

When can mediation take place?

Answer 28

at any stage in the proceedings up to trial and even pending an appeal

Question 29

How can the court assist in the timing of mediation?

Answer 29

they should try to set a timetable for trial that allows the parties to take part in ADR along the way.

Question 30

When is the most advantageous time to embark on mediation?

Answer 30

if the parties have fully defined the issues, disclosed key information and quantified the claim and any counterclaim, then the most advantageous time is before proceedings are issued.

Question 31

What should the parties do if further information or documentation is needed?

Answer 31

agree that this should be done in advance of mediation, or as part of the mediation procedure.

Question 32

When should mediation be attempted if it cannot be reasonably undertaken before issuing proceedings?

Answer 32

after the exchange of statements of case or after disclosure of documents.

Question 33

Can the parties apply for a stay in the court proceedings to attempt mediation?

Answer 33

Yes, this is the best way to save costs

Question 34

Can a party refuse to participate in mediation?

Answer 34

any refusal must be objectively reasonable on the facts of the particular case and the party refusing it must be prepared to explain and justify this to the court.

Question 35

What will happen if the court deems there to be an unreasonable refusal to participate in mediation?

Answer 35

they may make an adverse costs order

Question 36

What is the role of the mediator?

Answer 36

The mediator will:

(1) chair the meetings and manage the process
(2) set the agenda for the mediation and suggest the order in which issues should be negotiated
(3) control the form that the mediation follows
(4) decided whether discussions should take place in joint or private meetings
(5) prevent interventions by the other side during the opening statement of the opposing party.
(6) control the form of questions that one party may put to the opposing party

Question 37

How will the mediator act as a facilitator?

Answer 37

the mediator will:

(1) gather information from the parties both at the pre-mediation stage and during the mediation
(2) help the parties to identify the legal and factual issues
(3) encourage the parties to treat the mediation as their ‘day in court’
(4) help the parties to listen to each other and communicate more effectively with each other
(5) discourage or defuse confrontational or aggressive communications between the parties that will hinder negotiations
(6) encourage parties to think about the BATNA and WATNA.

Question 38

How will the mediator act as the intermediary?

Answer 38

they will convey offers, concessions and information, rejections, concessions and counter-offers from one party to another. The parties will negotiate through the mediator as an intermediary

Question 39

Do mediators have to comply with ethical standards?

Answer 39

Yes

Question 40

What is the required competence of a mediator?

Answer 40

a mediator must be competent and knowledgeable in the process of mediation. The mediator should be competent to conduct the mediation bearing in mind the nature and complexity of the dispute and the needs and objectives of the parties.

Question 41

What do mediators need in relation to independence?

Answer 41

Mediators must ensure there is no conflict of interest with any of the parties directly or indirectly affected by the dispute. If circumstances do arise that might give rise to a conflict of interest these should be disclosed to the parties immediately

Question 42

What must the mediator ensure in relation to the mediation procedure?

Answer 42

that all the parties understand the nature and purpose of the mediation process, the terms of the mediation agreement, the fees payable and the obligations of confidentiality imposed on the parties and the mediator.

Question 43

What does the mediator need to ensure in relation to fairness?

Answer 43

the mediator must act fairly between the parties, ensuring that all parties have adequate opportunities to be involved in the process and that the process is conducted in a manner which is fair to both parties.

Question 44

Does the mediator have to ensure that the terms of the settlement are fair to each of the parties?

Answer 44

No, the point of mediation is that the parties make their own decision, the mediator only has to ensure that the discussions made are fair

Question 45

Can the mediator place pressure on parties to settle?

Answer 45

No

Question 46

Is the information arising out of a mediation confidential?

Answer 46

Yes, the mediator must keep all information arising out of or in connection with the mediation confidential, unless compelled to give full disclosure by law.

Question 47

If confidential information is passed from one party to a mediator, can the mediator pass this information on the other party?

Answer 47

Not without permission, or if compelled by law.

Question 48

Can the mediator terminate the mediation?

Answer 48

Yes if they believe a settlement to be unenforceable, illegal or that continuing the mediation is unlikely to result in settlement

Question 49

Can the parties withdraw from the mediation and what is the mediator’s role in relation to this?

Answer 49

the mediator should explain to the parties that they have the right to withdraw from the mediation at any time and without giving reason for doing so

Question 50

What should the mediator do if an agreement is reached at the mediation?

Answer 50

ensure that all the parties understand the terms of the agreement, and that they consent to it.

Question 51

Can a confidentiality clause be implied from a mediation?

Answer 51

Yes, because it would destroy the basis of mediation if either party could publicise the matters that took place between them and the mediator.

Question 52

Does the mediator owe a duty of confidentiality to the parties?

Answer 52

Yes

Question 53

Does a confidentiality clause reinforce the without prejudice rule?

Answer 53

Yes but this would not apply to documents produced for other purposes even if they were used in the mediation.

Question 54

What does the confidentiality in mediation attach to?

Answer 54

it attaches to the events during the mediation process, rather than the fact that the parties are about to or have embarked on mediation

Question 55

When does the duty of confidentiality apply until for the mediator?

Answer 55

It is a continuous duty, even after the mediation has completed or been terminated

Question 56

Who can waive the confidentiality clause in mediation?

Answer 56

Unlike the without prejudice rule which exists only for the benefit of the parties, the mediator also has a right to the confidentiality. Hence, to waive confidentiality all parties and the mediator must agree to do so.

Question 57

When will the court override the confidentiality provisions?

Answer 57

if it is in the interests of justice to do so.

Question 58

How does the without prejudice rule apply to mediation?

Answer 58

the documents and communications taken during the mediation made for the purpose of settling the dispute cannot be referred to in subsequent court proceedings

Question 59

What can the court do if a party attempts to refer to a part of mediation discussions?

Answer 59

the court may grant an injunction to restrain a party from referring to any part of the discussion.

Question 60

What communications from mediation will be protected by the without prejudice rule?

Answer 60

(1) any oral or written communications between the parties or the parties and the mediator made for the purposes of exploring settlement.
(2) communications created for the purpose of trying to persuade the parties to mediate
(3) it may also operate to protect information obtained from investigations as carried out as part of the mediation process.

Question 61

What communications are not protected by the without prejudice rule in mediation?

Answer 61

(1) if representations fall under the fraud/misrepresentation except
(2) the rule does not protect documents that were not created for the purposes of exploring settlement.
(3) the court can look at communications if they are determining whether such communications resulted in a concluded settlement.
(4) the mediation agreement is not protected by the without prejudice rule

Question 62

Can the mediator rely on the without prejudice principle?

Answer 62

This rule exists for the benefit of the parties and can be waived by them. It is not a privilege of the mediator

Question 63

Who should attend the mediation?

Answer 63

Those who:

(1) have direct knowledge of the key issues in the case
(2) are closely and personally affected by the dispute or the resolution of it.
(3) who has the necessary technical expertise
(4) has the authority to settle the dispute

Question 64

What is a position statement?

Answer 64

this is a statement from both parties setting out their case. Although, parties will rarely be asked to provide a position statement for a case being mediated by the Small Claims Mediation Service.

Question 65

What documents are necessary for mediation and how should they be compiled?

Answer 65

The documents should be provided in an agreed bundle. This should consist of:

(1) statements of case if proceedings have been issued and detailed letters of claim if they have not
(2) witness statements that have been disclosed by the parties
(3) any expert reports
(4) case management orders
(5) Part 36 offers or other offers that have not been accepted
(6) any relevant key documents
(7) any other relevant correspondence

Question 66

What are the four key stages of a mediation?

Answer 66

(1) the opening stage- consists of introductions and each party setting out their position in relation to the issues in the case.
(2) the exploration- this can take place in open or private meetings
(3) the negotiation stage - this normally takes place in private meetings
(4) the settlement - this takes place in joint meetings and the lawyers draw up any agreements

Question 67

What happens in the open joint meeting in stage 1 mediation?

Answer 67

(1) introduction
(2) opening statement by mediator
(3) opening statement by each party
(4) mediator’s closing remarks

Question 68

What happens if the meeting at stage 2 mediation is open?

Answer 68

(1) explore issues
(2) explore each party’s position on issues
(3) exchange information

Question 69

What happens if the meeting at stage 2 mediation is closed?

Answer 69

(1) mediator explores each party’s case
(2) mediator carries out reality check
(3) parties and mediator explore strategies for settlement.

Question 70

What happens if the stage 3 mediation meeting is open?

Answer 70

where parties negotiate face to face

Question 71

what happens if the stage 3 mediation meeting is closed?

Answer 71

the mediator acts as a shuttle diplomat, parties make and consider offers and concessions

Question 72

What happens in the stage 4 of the mediation?

Answer 72

they confirm settlement terms, lawyers work together to draft settlement agreements