ADR: Non-Adjudicative Options Flashcards
When advising client when is the best time to consider mediation?
Ans: Look for the happy medium. The point when detail of the claim and response is known to both sides but before significant costs are incurred in reaching that point.
Case: Nigel Witham v Smith (Jackson 3.01-3.03 and 13.11
Concilliation what is it?
- A concilitior will facilitate a negotiation between the parties
- Its commonly used in employment and family disputes
-Its a non-adjudicative form of ADR
Mediation Generally describe (confidentiality)
- all parties benefit of confidentiality
-info provided to mediator by a party during a private meeting is only disclosable to the other party with the express consent of the party who provided the info
Mediator during mediation process is protected by the confidentiality obligation, the mediator cant reveal info to anyone unless all the parties to the confidentiality agm agree to waive confidentiality or unless the court lifts the cloak of confidentiality on the basis that its interest of justice
More mediation facts
- Mediation enables parties to consider more creative terms of settlement and go beyond the pleaded case
- Mediation can still be a beneficial process even if a final settlement is not reached
What’s the benefit of joint settlement meetings? (cost)
- JSM are cost effective because there is no cost of a neutral third party as they are normally attended by the parties and their legal rep
What is facilitative Mediation
Facilitative mediation doesn’t give an opinion on the strengths or merits of each party’s case or the likely outcome of the dispute.
ex:
- Explore each party’s situation and help them identify what they want to achieve from the dispute
- Mediator will help parties nego more effectively, acting as a “go-between”
What is evaluative Mediation
- The mediator will assess the claim or issue in dispute and give an opinion on the likely outcome. This will assist the parties to consider settlement.
ENE elaborate to me( When can it be used, timing of it used, can it be used by parties, can it be used after proceedings to settle assessment of costs)
- ENE can be employed in early stages of a dispute but can in fact be utilised at any stage
-Ene can be utilised before or during a mediation to assist the parties in settling their dispute
-ENE can be used to settle assessment of costs after the main proceedings
-ENE can be undertaken by just one party to assess the strengths and weakness of its own case
When are negotiation binding (rmbr it dont necessarily have to be in writing and signed)
- Once offer and acceptance are in place, even if by telephone/email, provided the terms are suff clear, you will have a binding agm, even if the precise wording of an agm/order yet to be agreed, unless it has been agreed that the terms will only be binding in certain circumstances
-A settlement reached through nego is binding once its agreed and the terms are suff clear. The settlement binds the parties immediately, unless it has been agreed that the terms will be binding in certain circumstances.
Are documents that are not created for the purpose protected by the “without prejudice rule”?
No. It is not, only document created for purpose of settlement are protected, even if the document are used in mediation ought to be disclosed as part of standard disclosure during litgiation.
What is mediatiojn?
-Non-adjudicative form of ADR that invovle neutral third party (mediator) whose role is to facilitate the resolution of the issues/dispute between parties
- Why is mediation effective?
= It introduce a neutral TP to the nego, particularly in cases where the parties have attempted to nego directly with each other and failed. It can help parties to regain perspective in respect of their case.
What are disadv of choosing to ligtate instead of mediate (cost, control during nego, not attractive where precedent is req)
Although generally cost-effective, mediation does involve an additional layer of costs (e.g. each party’s own legal costs, the mediator’s fee etc.), which will serve to increase the overall cost of the litigation if the mediation is unsuccessful.
The lawyers will lose control of the process as the negotiations will be facilitated by the mediator who will speak directly with the parties. This is something that the reading refers to but in practice, your client will look to you for advice before agreeing to settle the case. Given that most mediations are facilitative, it is the lawyers who will ultimately advise the client on whether it is a good settlement and will also draw up the terms of settlement.
May not be attractive in cases where a precedent is required; some form of injunctive relief sought or court order; or where there are criminal allegations.
When is the best time for mediation?
anytime before trial
-Trick: Find the happy medium - point when the detail of the claim and the response are known to both sides. But before the cost have been incurred to stage that settlement no longer possible
How will you advise the client if they are seeking to focus on resolution for a bit but agreed a timetable with the court next month about the case
- When diarising directions at the case management hearing, the court can allow time in between key stages for trial to allow parties time to explore mediation
Court general case management power (CPR 3.1) the court can order a stay of proceedings until a specified date. If proceedings issued, the parties can apply for stay of proceedings (CPR 26.5)
What is the general structure adopted for mediation ( 4 stages)
Opening stage- Intro- each party set out positions
Explore stage:- Getting to to issues in the case from each party’s perspective. Meditor uses his skills for the parties to have reality check
Bargaining stage: Mediator will act as a broker between the parties - closed sessions
Settlement stage- lawyers draw up the agm
