ADR: Mediation Flashcards
What type of ADR is mediation?
What is it?
NON-ADJUDICATIVE
Where neutral third party (mediator) facilitates discussion and negotiations between the parties in a structured but flexible process
Evidence shows that around ______% of cases ____ after mediation. Those that don’t often ____ later.
Give some examples of advantages of Mediation?
70-80% /settle/settle
Advantages:
- flexible
- quicker than ligation and can be organised quickly
- can be cost effective
- private and confidential
- less stress
- settlement reached but mutual agreement, helps preserve relationships
- allows for more creative solutions
- helps narrow issue even if settlement not reached
- third party helps create balance
What types of disputes are NOT suitable for mediation?
Need legal precedent Outcome needs court order Interim/urgent order needed Full disclosure needed and party not forthcoming Complex legal issues Too much animosity Criminal allegation
When should mediation be used?
Can be used at any time … but trick to identify happy medium … details clear but costs incurred not too much
If issues clear = better pre-issue
If cannot happen pre-proceedings, should be consider after pleadings are served or after disclosure — + consider applying for stay within directions Questionnaire
If further information or evidence is required, will the court accept it was reasonable to refuse mediation on this basis?
May not accept, parties should discuss with the other side and attempt to take steps to overcome this
Mediator role involves ….
What about if the parties request evaluative mediation?
ORGANISING mediation process, acting as a FACILITATOR during mediation; and as a INTERMEDIARY between parties
Same roles but mediator then evaluates case and recommends terms of settlement (ONLY IF parties request)
When does confidentiality attach?
What about mediator?
When can the court overriding confidentiality?
Attaches to the event DURING mediation, not to the mere fact that mediation occurred
So discussion and information exchanged during the course of must be kept Confidential
Mediator is also bound by confidentiality, which continues after mediation is completed
Court can permit evidence of confidential communications in mediation to be disclosed if it is in the interests of justice to do so
Give some examples of when the court may override confidentiality
ONLY in VERY EXCEPTIONAL & LIMITED CIRCUMSTANCES
Fraud or misrepresentation
Potential negligence / breach of contract
Professional negligence
Well-being of a child involved or to prevent criminal act
When communications that take place before or during mediation, made for the purpose of settling the dispute, can reference be made to that in later proceedings?
What document are NOT protected by the without prejudice rule in mediation?
NO - CANNOT be relied on or referred to in subsequent court proceedings
Documents NOT created for the propose of exploring settlement even if used in the mediation
Mediation agreement itself
What does legal advice privilege cover?
When may positions statements be used?
Communications between lawyers and their clients where the purpose fo the communication is give in or receiving legal advice
In complex cases, mediator may ask each party to provide a statement setting out their case
What are the 4 key stages of mediation?
- Opening stage - introductions and parties will set out their positions
- Exploration stage - getting to issue from each parties perspective, mediator will have separate meetings which each party, allows parties to explore strengths and weaknesses of their own case with the mediator
- Bargaining stage - mediator acts as a shuttle/diplomat, starts in private meetings then can expand, may ask mediator how best to present an offer
- Settlement stage - Lawyers will draw up agreements, mediator will ensure terms are confirmed between parties and signed
