5. ADR: Non-Adjudicative Options

Question 1

What is Early Neutral Evaluation?

Answer 1

ENE is a private, non-binding assessment and evaluation of the facts, evidence and/or legal merits of one or more of the issues in the case or of the case as a whole. Usually undertaken jointly, but in some cases may be taken at the request of one party. Without prejudice and non-binding, evaluation usually given after the evaluator has considered the materials.
It is an advisory and evaluative process. Can take place without the court system or outside of it.
Private and confidential process, and evaluator must be impartial. If appointed under an adr provider, they will have a code of conduct.

Question 2

What stage should early neutral evaluation be employed?

Answer 2

At any stage, though usually in the early ones. But ultimately can be used whenever, and even after a case when costs are being discussed.

Question 3

When should early neutral evaluation be used?

Answer 3

Where it could be helpful to settle the dispute by negotiation or mediation. Can be particularly helpful where one side has taken an urealistic and entrenched approach to one or more of the issues and would benefit from an assessment from someone unbiased. Particularly useful if an issue requires technical or specialist knowledge, like on the law.
Process therefore helps each party to appreciate the strengths and weaknesses of the case, potentially leading to settlements.

Question 4

What is the procedure for early neutral evaluation?

Answer 4

Primarily decided by the evaluator but will usually be fixed after consultation with he parties. Process is flexible and can be tailored. Parties control the amount and form of the information placed before the evaluator and can narrow the issues to be decided. Usually instructed by both parties where they will both agree the terms of instruction. Can also agree that the evaluator can carry out their independent investigations. Evaluator may wish, once appointed, to hold an early meeting with the parties to agree ground rules, documentation to be provided, whether a hearing is required, and time limits for each stage.
Usually provides for written submissions w/ evidence. Can agree oral hearing/meeting.
Evaluator will evaluate the evidence and law bearing in mind the submissions and produce a recommendation setting out his or her assessment of the merits and likely outcome. May or may not contain reasons depending on the agreement reached.
Evaluation is non-binding.

Question 5

What is judicial evaluation in respect of early neutral evaluation?

Answer 5

Can be carried out by a judge in any court. Judge will consider the legal and factual issues alongside submissions and issue a non-binding recommendation or evaluation. If the parties ask for the judge to express a provisional view, it is part of the judicial function to do so. Court can order ENEN pursuant to CPR 3.1(2)(m) even if one party does not consent.
Judicial ENE can give the parties an indication of the likely outcome and can have a strong persuasive effect on the parties, who may adopt the judge’s recommendations in settling the dispute. Particularly useful if the case raises limited areas of factual dispute, or where there is a difference of opinion about the value of the claim, or where they have differing conceptions about the strength of the claim. Can provide guidance on the court’s view of quantum.

Question 6

What is conciliation?

Answer 6

Has no single agreed meaning, though normally involves a neutral third party. Conciliator might facilitate a negotiation between parties or propose a decision, if the parties cannot reach one, although this may be binding. If conciliation does not produce a final result, another process may follow. A number of bodies offer it, including ACAS.

Question 7

What is conciliation?

Answer 7

Has no single agreed meaning, though normally involves a neutral third party. Conciliator might facilitate a negotiation between parties or propose a decision, if the parties cannot reach one, although this may be binding. If conciliation does not produce a final result, another process may follow. A number of bodies offer it, including ACAS.
While conciliation is mostly identical to mediation, the most important conciolliation processes (ACAS and in-court in family cases) have a statutory process, and vinvolve conciliators who are appointed by an outside body. Other conciliation schemes including the disability conciliation service and the furniture ombudsman conciliation scheme. Like mediation, conciliation is a non-adjudicative facilitative process. Conducted on a confidential, without prejudice basis. If successful, it will result in a compromise agreement. If unsuccessful, parties can revert to other forms of legal redress, typically through the courts or tribunals.
If applying to an employment tribunal, parties must provide information to ACAS who sends it to a conciliation officer who have a duty to consider whether there are alternatives to litigation. ACAS service is free of charge. The process includes:
* A conciliation meeting if all parties agree to conciliation. Meeting will explore settlement
* Conciliator will explain the process, his or her role, and explore each party’s case and discuss proposals for settlement with each party.
* Not the function of an acas conciliator to ensure that the terms of settlement are fair to the parties, nor should the conciliator advise the parties about he merits or likely outcomes
* If settlement is reached, will be recorded on an ACAS settlement form and signed by both parties. Enforceable.
* Acas will inform the tribunal settlement has been reached.

Question 8

What is mediation?

Answer 8

Mediation is a flexible, cost-effective and confidential process in which a neutral third party facilitates discussions and negotiations between the parties with a relatively structured but flexible process, in a formal setting, during a defined period of time. In short, neutrally assisted negotiation.

Question 9

Does mediation work?

Answer 9

Yes, even more so if voluntarily agreed. 70 to 80 percent of cases settle at mediation. For the minority that don’t, they mostly settle a short time after.

Question 10

Why does mediation work?

Answer 10

Because the mediator can assist the negotiation process in the following ways:
* Adds a new dynamic and creates a balance between the different negotiation styles
* Following rules of principled negotiation, especially where deadlock is created by positional or competitive negotiation (can reframe offers/retime them/time concessions)
* Mediator can be skilled at managing and diffusing strong feelings that may be the key barriers to settlement
* Mediators will bring their own personal attributes, which can help the parties to review and re-evaluate their case
And that:
* It is flexible and tailored
* Speedy resolution
* Cost effective
* Confidential and private
* Avoids an adverse precedent
* Avoids emotional distress of giving evidence
* Can preserve relationships
* More creative when reaching a settlement
* May help, even if no settlement, to narrow issues by understanding the other side’s case
* Court may direct mediation
* Parties are paying for the mediation so there is an impetus to settle
* Control into the parties’ hands

May work even if negotiation has failed as is structured differently with the mediator acting as a go between and encouraging each party to take part.

Question 11

Do the courts endorse mediation?

Answer 11

Yes, they have readily endorsed and encouraged ADR use in general.
However, in many cases, the courts have stressed the importance of mediation IN PARTICULAR (Jackson gives a list of cases for this at 13.07).

Question 12

What disputes are suitable for mediation?

Answer 12

Any dispute capable of being solved by negotiation. Can also be contractually bound to it. Can be useful for resolving multi-party disputes involving multiple issues, including those which raise law and jurisdictional issues. Should be used especially where the court has threatened sanctions.

May not be appropriate in debt claims where there is no defence as it may be better to apply for summary judgment.

Question 13

When should mediation be used?

Answer 13

At any stage, but consideration should be given to exactly when to use it. Court should set a timetable to allow the parties to try adr.

If fully defined the issues, disclosed key info and quantified the claim/any counterclaim, the most advantageous time would be before proceedings.

If further information needs to be obtained, there is no reason why the parties cannot agree this should be done in advance of mediation.

If cannot be reasonably undertaken before issue of proceedings, the best time to attempt it may be shortly after exchange of statements of case or disclosure. Later the time it takes place, the greater the decrease in the costs savings that can result. Those who try mediation after issue should consider a stay.

Any decision to refuse mediation at any point in time should be objectively reasonable on the facts of the case, with the party doing so being ready to explain this.

If a refusal is adjudged unreasonable, an adverse costs order may be made.

Question 14

How could one persuade a reluctant party to consider mediation?

Answer 14

Perhaps by approaching a neural mediator to give neutral information about the benefits of mediation and to see whether it would be appropriate/how the process may be tailored. If only one party approaches the mediator, that party will be solely responsible for any fees charged for acting as a broker. That broker will usually not conduct the ADR as may seem not neutral. The broker should disclose all dealings.

Question 15

What are the costs of mediation?

Answer 15

Mediators’ fees may be less if a court or fixed-fee mediation scheme is used. If the parties use an adr provider, the fee charged may be higher than the fees paid directly to a specific mediator. A discount on the usual fee may be offered if the adr provider operates and the parties select an express mediation service that the parties use to select the mediator, but carry out most of the administrative work themselves, such as booking the venue and agreeing the date.

Fees are usually payable in advance and if not paid the mediation may be cancelled with the parties liable to pay some or all of the cancellation charges. Any additional charges will be billed after.

A party may be able to recover their own mediation costs from the other party in the court of litigation or through the settlement agreement.

Question 16

What is the mediators role?

Answer 16

• Organising the mediation process
• Acting as a facilitator
• Acting as an intermediary

By organising the mediation process, I mean:
* Arranging the pre-mediation meeting including seeing what the authority is each party has
* At the mediation, chairing and managing the process, setting the agenda, control the form of mediation, decide what discussions should take place in joint or private meetings, impose or suggest a time limit for delivering of opening statements, decide what further join meetings are required, prevent interventions by the other side during the opening statement of the opposing party, control the form of questions one party may put to another

By acting as a facilitator, I mean:
* Gathering information at the pre-information stage and during about disputes in issue and their needs and interests
* Help identify the legal and factual issues
* Encourage the parties to treat the mediation as their day in court
* Help the parties listen to each other
* Discourage or defuse confrontational or aggressive communications
* Encourage the parties to analyse the strength and weaknesses of their cases
* Perform the role or reality checker
* Encourage the parties to think about the best alternative to a negotiated agreement (BATNA) and the worst alternative to a negotiated agreement (WATNA), and ensure they have completed a full risk assessment of going to trial
* Encourage brainstorming
* Reviewing and reflecting on the original negotiations
* Create and use strategies and options to break deadlock

By acting as an intermediary, I mean:
* The go between or shuttle diplomat
* Being the person the parties negotiate with
* Being even handed in his or her dealings with the parties

Even if no settlement is reached, it is not uncommon for the parties to engage the mediator to broker settlement negotiations at a future date if their trust and confidence has been gained and retained.

Question 17

What are the mediator’s ethical duties?

Answer 17

May have to follow a code of conduct, such as those registered with the civil mediation council that have to follow the European code of conduct for mediators. Code is voluntary. Mediators who are professional qualified are expected to follow their code of conduct.

Generally, the below ethical standards should be stuck to:
* Competence (CPD). Can provide information about their background to the parties
* Independence and neutrality. Should disclose any information which may affect these. Mediator should only act if the parties specifically consent after this information (should be in writing). Some situations where the mediator should outright refuse, such as those where they stand to benefit financially.
* Impariality at all times
* Help the parties understand the procedure
* Acting fairly to all parties, ensuring an equal footing. No undue pressure should be put to settle.
* Confidentiality. No disclosure should be made unless authorised or compelled by law.
* Terminate the mediation if they believe a settlement to be unenforceable or illegal, or that continuing the mediation is unlikely to result in settlement. Should explain the right of withdrawal from mediation. Should ensure the consent and understanding about any settlement reached, any give advice on how to make a settlement enforceable if asked. Should retain documents confidentially, if any are retained. Some destroy the notes in front of the parties.

Question 18

What are the accreditation and regulation requirements of mediation?

Answer 18

No statutory regulation. Accreditation can take place in the following ways:
* Satisfying the requirements for training and CPD. Most comply with the minimum requirements of the civil mediation council. For those undertaking training after 1 April 2011, the training had to include no less than 40 hours of tuition and role play.
* There is a system of voluntary regulation and registration
* There is an accreditation of the family mediation council
* The law society has a system
* The bar council also has a database of barrister willing to mediate who must provide evidence that they are suitably qualified and are a member of a relevant body

Question 19

How confidential is mediation?

Answer 19

Usually will contain a term that neither party can reveal any detail of the process of any information obtained without the express consent of the other party. Even in the absence of one, it may be implied. Mediator also owes a duty of confidentiality. An express term adds weight to the without prejudice rule.

Unless the mediation provides to the contrary, the mere fact that mediation has been attempted is not confidential.

Any information given to the mediator is confidential, and this duty will apply even after mediation.

The confidentiality clause must be wived by all parties to the obligation of confidentiality, including the mediator.

The court can override the confidentiality in certain circumstances.

Question 20

In what circumstances can a court waive confidentiality of a mediation?

Answer 20

if it is in the interests of justice to do so.
Other situations may include:
* An action by one or both parties against the mediator for breach of contract or negligence
* An action by a party against their solicitors for professional negligence arising out of their conduct of a claim which was settled at the mediation stage

To permit any other overriding would undermine the mediation process.

Different grounds apply for overriding in cross border disputes.

Question 21

In what other situations can a mediation’s confidentiality be waived?

Answer 21

• Where disclosure is required by law
• Where disclosure is necessary to prevent risk of harm to the public at large
• If the mediator believes there is a risk of significant harm to the health, life, or well-being of a person if information is not disclosed
• If necessary to prevent criminal activity

Question 22

What is the without prejudice rule in mediation?

Answer 22

That communications made in such circumstances cannot be relied upon or referred to in subsequent court proceedings if unsuccessful. Courts will generally not inquire into aspects of the mediation, and may even grant an injunction to stop one party talking about it.

This rule will also apply to discussions that are made before the mediation agreement is signed or before it takes place, or during it.

However, at present, there is no special category of mediation privilege.
It should be noted that:
* The court will admit evidence of communications that occurred during a mediation if one of the exceptions to the rule can be established such as fraud/misrepresentation
* Not protect documents not created for the purposes of settlement or to a joint statement made following a meeting of the experts instructed by each party that was created for the mediation as the court can order it to be given to it
* Can look at communications during the settlement to see if a concluded settlement was reached
* Mediation agreement is not protected
* If all parties waive privilege, the communications can be used
* No waiver simply because a party makes application for indemnity costs nor for negligence in relation to conduct of proceedings and in negotiations leading to a settlement. The general principle was that bringing a claim did not disentitle a party to rely on without prejudice privilege. Qualified on the basis that where an issue was raised that was only justiciable upon proof of the without prejudice negotiations but that did not apply where other evidence can be used.
* Parties can expressly alter the basis on which they were communicating.

Cannot be relied upon by the mediator if the parties waive it.

Legal advice privilege will also be upheld.

Question 23

Who should attend the mediation?

Answer 23

Factors influencing this include:
* Who has direct knowledge of the key issues
* Who is mostly closely and personally affected by the dispute?
* Who has the necessary technical knowledge?
* Does resolution require the attendance of an expert?
* Who has authority to settle?
* What message will the identity and status send to the other participants?

Question 24

What are position statements in regard to mediation?

Answer 24

A statement setting out their case. Only likely required to be used in complex cases. May consider it useful to prepare one even if not asked for one.

Question 25

What are the key supporting documents to a mediation?

Answer 25

The agreed bundle, which should be sent within the time limit specified. If no time limit, at least 7 days before would help. Agreed bundle should consist of:
* Statements of case if proceedings have been issued
* Witness statements
* Any expert reports
* Case management orders
* Part 36 offers or other offers not accepted
* Any relevant key documents
* Any other relevant correspondence

Question 26

What are the stages in mediation?

Answer 26

Typically:
* The opening stage (introductions and each party setting out their formal position) usually in a joint session
* The exploration (or information) stage. This can take place partly in open joint meetings or closed private meetings, or wholly one or the other, depending on the preferences of the parties and view of the mediator.
* The negotiation (or bargaining) stage. This will almost invariably take place in closed private meetings, with the mediator acting as a broker.
* The settlement (or closing) stage. Usually take place in joint meetings between all of the parties who will have the task of drawing up the agreement.