ADR: Non-Adjudicative Options. Conciliation and mediation

Question 1

Conciliation

Answer 1

the term conciliation has no single agreed meaning though it normally involves a neutral third party. The conciliator might facilitate A negotiation between the parties.

Alternatively A conciliator may propose a decision if the parties cannot reach one, though this may be non binding.

In some instances if conciliation does not produce a final result another process may follow.

A number of bodies offer conciliation services, probably the best known being the advisory, conciliation an arbitration service.

While conciliation is in most respects identical to meditation mediation, the most important conciliation processes have a statutory basis, an involved conciliators who are appointed by an outside body rather than the parties. Like mediation conciliation is a non adjudicative, facilitative process.

It is conducted on a confidential, without prejudice basis.

If it’s successful it will result in a compromise agreement, which, like mediation, can cover issues an interest going outside the scope of the original dispute. If it is unsuccessful, the parties can revert to other forms of legal redress. Typically through the courts or tribunals.

Question 2

Dispute suitable for mediation

Answer 2

mediation is suitable for all disputes which raise issues capable of being resolved by negotiation, whatever the subject matter of the underlying cause of action.

The parties may also have contractually bound themselves by a dispute resolution clause to attempt to resolve a dispute by mediation before embarking on litigation (or arbitration). Mediation can also be useful for resolving multi party disputes involving multiple issues, including those which raise conflict of law and jurisdictional issues. Mediation should be considered if the court has encouraged or directed the parties to attempt settlement by mediation, or whether parties may face adverse costs orders or other sanctions if they unreasonably refused to mediate.

Mediation may not be appropriate in depth claims where there is no sustainable defence as it may be more advantages in such cases to issue proceedings and apply for summary judgement.

Question 3

The timing of mediation

Answer 3

if the dispute is suitable for mediation. Consideration needs to be given to the timing of it.

Mediation can theoretically take place at any stage up to trial and even pending an appeal as is aptly demonstrated by the Court of Appeal mediation scheme.

The emphasis should be on the parties consensually agreeing on the best time to mediate. The court should try to set a timetable for trial that allows the parties to take part in ADR along the way.

If the parties have fully defined the issues, disclosed key information and quantified the claim and any counterclaim, then the most advantageous time to embark on mediation will be before proceedings are issued.

If further information or documentation needs to be obtained to enable an evaluation of the strengths and weaknesses of each party’s positions to be assessed, there is no reason why the parties could not agree that this should be done in advance of mediation, or as part of the agreed mediation procedure.

If mediation cannot was reasonably be undertaken before issue of proceedings, the best time to attempt it may be shortly after exchange of statements of case or after disclosure of documents. The later the mediation takes place in the litigation, the greater the decrease in the costs savings that can result from a mediated settlement. Parties who wish to attend mediation after issue should consider applying for a stay of the proceedings and a suspension of the timetable set by the court in order to save costs.

Any decision to refuse mediation at any point in time should 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. If a refusal is judged to be unreasonable an adverse costs order may be made against the party.

Question 4

Persuading A reluctant party to consider mediation?

Answer 4

Assuming the case is suitable for mediation, and the time is right for mediation to be attempted, if one party wishes to try mediation and the other party does not, consideration should also be given to approaching an ADR provider to give neutral and independent advice about the benefits of mediation, assess whether it would be appropriate given the facts and circumstances of a particular dispute, and, if so, advice how the process could be tailored to meet the needs of the parties.

If one party approaches the ADR provider, that party will solely be responsible for any fees charged for acting as broker. The person acting as broker will not usually conduct the mediation.

If an individual mediator is approached by one party to act as a broker, he or she may decline to do so on the grounds that the other party may not perceive the broker to be neutral. The person acting as broker will warn usually to disclose dealings and communications with all parties. For that reason the parties should be careful about revealing confidential information to the broker at this stage. If the dispute is suitable for mediation the broker will liaise with the reluctant party and will seek to persuade that party to engage in the process.

Question 5

What can be done by the court to make a reluctant party consider mediation?

Answer 5

The court can do a number of things to make a reluctant party consider mediation:

• the court can offer strong judicial encouragement to the parties to mediate their dispute. However, the court will not compel parties to mediate if they’re unwilling to do so.
• The court can make an ADR order directing the parties to consider ADR in particular mediation. This is rapidly becoming part of the standard pre trial case management directions.
• Although the courts will not mandate parties to use mediation against their will, in some cases, the courts can direct the parties to make contact with a mediator to consider mediation. This should be regarded as mandatory consideration of mediation, rather than mandatory mediation. Where such an order is made, the parties will have to do more than merely consider mediation; instead they will be required to meet or have telephone contact with a mediator who will provide the parties with information about mediation, assess whether it would be an appropriate process to use to settle the dispute, and attempt to persuade the parties to use mediation. So the court may compel the parties to consider mediation, it will not compel them to mediate if they do not wish to do so. Compulsory consideration of mediation currently takes place in most family disputes, in some small claims cases, and in some cases in the Court of Appeal. At present, it is not proposed to introduce referral for mandatory consideration for mediation in fast track or multi track cases.
• The court can stay proceedings(assuming that proceedings have been issued) and direct the parties to attempt to resolve their dispute by ADR.
• The court may be able to assist the parties to resolve the dispute by mediation by making appropriate orders for advanced disclosure of information or documents relating to one or more issues in the case on the application of 1 or both parties.
• If both parties consent, judicial mediation can be undertaken.
• If one or both parties have acted unreasonably in refusing to use mediation to resolve the dispute, the quarter main markets disapproval in the form of adverse costs orders.

Question 6

Organising the mediation process at the mediation

Answer 6

the mediator would also perform an organisation role at the mediation in particular the mediator will:
* chair the meetings and manage the process.
* Set the agenda for the mediation by suggesting the order in which the issues should be negotiated and amended if necessary as the mediation progresses
* control the form that the mediation follows on the day (and discuss with the parties and or decide whether any modifications should be made to the process to meet their needs of the case or the parties).
* Decide when discussions should take place in joint or private meetings.
* Impose or suggest a time limit for delivery of opening statements in the initial joint meetings.
* Decide whether further joint meetings should take place during the negotiation phase in addition to the opening joint meeting.
* Prevent interventions by the other side during the opening statement of the opposing party.
* Control the form of questions that one party may put to the opposing party in the opening joint session.

Question 7

Acting as facilitator

Answer 7

the mediator will assist the parties to negotiate with one another in a more effective manner than they would be able to achieve on their own. The mediator will do this in the following ways:

• gather information from the parties both at the pre mediation stage and during the mediation about the issues in dispute and their needs and interests.
• Help the party’s identify the legal and factual issues, and their underlying needs and objectives.
• Encourage the parties to treat the mediation as their ‘day in court’ and to air their feelings and emotions, particularly in private meetings, so that the matter can move forward.
• Help the parties to listen to each other and communicate more effectively with each other.
• Discourage or diffuse confrontational or aggressive communications between the parties that will hinder negotiations, and reframe them if necessary.
• Encourage the parties to analyse the strengths and weaknesses of their own case and the case presented by the other side.
• Encourage the parties to think about the best alternative to a negotiated agreement and the worst alternative to a negotiated agreement. And ensure that they have carried out a full risk assessment. Including the costs and irrecoverable costs of proceeding to trial.
• Review the negotiations that have already been taking place between the parties, and encourage each party to reflect on why they failed and how they can change their position to move the matter forward.
• Encourage brainstorming and the generation of options for settlement, including the identification of common ground between the parties.
• Create and use strategies an options to end deadlock between the parties.

Question 8

Acting as intermediary

Answer 8

the mediator will act as the go between or shuttle diplomat during private meetings of the parties. The mediator will convey offers, concessions, and information, rejections, concessions, and counter offers from one party to another. The parties will negotiate through the mediator as intermediary, rather than with each other face to face. This can be very effective in achieving progress to an overall statement. The mediator will keep a record of any agreement reached on individual issues as the negotiation progresses, as this will help with drawing up any final overall settlement agreement.

In order for the mediator to carry out these functions, it is vital that each party trusts and has confidence in him or her. To build up that trust, the mediator must ensure that he or she is even handed in his or her dealings with the parties. The mediator may be rigorous and testing as devil’s advocate. But should not do or say anything that gives the impression he or she is not impartial and should not force our solution on the parties.

Question 9

Ethical standards

Answer 9

Any mediator who accepts instructions to mediate in a dispute between two or more parties should comply with the ethical standards discussed below

Question 10

Competence

Answer 10

Mediators must be competent and knowledgeable in the process of mediation. This should include proper training in mediation skills and the process of mediation, and a system for continuing professional development to refresh and update their skills. 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. Mediators should also provide information to interested parties relating to their background and experience so that they can make an informed choice.

Question 11

Independence and neutrality

Answer 11

immediate term must ensure that there is no conflict of interest with any of the parties directly or indirectly affected by the dispute. If circumstances exist which do or may give rise to a conflict of interest or affect his or her neutrality (such as previously acting for or advising one of the parties in an unrelated matter or having a personal or social relationship with one party). These should be disclosed immediately to the parties. The mediator should only consent to act in such circumstances if the party expressly authorised this in writing.

There may be some circumstances in which a mediator should refuse to act even if there has been Full disclosure to and consent from the parties, such as circumstances in which the mediator might benefit financially or personally from the outcome of the mediation, or the mediator has had a prior personal or professional relationship with one of the parties to the dispute

Question 12

Impartiality

Answer 12

The mediator should at all times act, and endeavour to be seen to act, with impartiality towards the parties.

Question 13

The mediation procedure

Answer 13

The mediator should ensure 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. The mediator should also explain the procedure to be followed in the mediation, which can be modified or agreed following discussions between the mediator and the parties.

Question 14

Fairness

Answer 14

The mediator should 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. The concept of fairness also means that the mediators must take care to avoid any party being forced into mediation or mediation settlement agreement as a result of abuse or threats or other unconscionable conduct.

However because the essence of mediation is that the parties make their own decisions about how to resolve their dispute, that notion of fairness would not extend to the mediator ensuring that the terms of any proposed settlement are fair to each of the parties, although this is subject to the need to have overall fairness in the process so that each party is in a position to freely make their own decisions about the dispute.

The mediator should also be careful not to put undue pressure on a party to settle the dispute. If this happened, the agreement could be set aside for undue influence or duress. The mediator must not press a party into settlement in order to maintain a high personal settlement rate.

Question 15

Confidentiality

Answer 15

The mediator must keep confidential all information arising out of or in connection with the mediation including the fact that the mediation is to take place or has taken place, unless compelled to give Full disclosure by law or on public policy grounds. Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission or unless compelled by law.

Question 16

Termination of the mediation

Answer 16

The mediator should determine at the mediation an informed the parties if appropriate if they believe a settlement to be unforeseeable or illegal or that continuing the mediation is unlikely to result in settlement.

The mediator should also explain that their parties have the right to withdraw from the mediation at any time, and without giving any reason for doing so.

If agreement is reached at the mediation the mediator should ensure that all parties understand the terms of the agreement and that they consent to it. The mediator may if requested by the parties and competent to do so give advice on how the agreement can be formalised and made enforceable. The mediator should also ensure that any files or documents including personal notes that are retained following the mediation should be securely and confidently stored. Many mediators adopt the practise of destroying any notes they made in front of the parties at the end of the mediation and returning any case papers supplied to the parties.

Question 17

Confidentiality in mediation

Answer 17

the mediation agreement will usually contain a term that neither party can reveal any detail of the mediation process or any information obtained during the mediation without the express consent of the other party. Even in the absence of an express confidentiality clause one is likely to be implied because it would destroy the basis of mediation if either party could publicise the matter that took place between them and the mediator. The mediator also owes the duty of confidentiality to the parties. A confidentiality clause adds weight to the without prejudice rule an it may be wider than that

A confidentiality clause reinforces the without prejudice rule

this would not apply to the documents produced for other purposes which were needed for and produced at the mediation.

Unless the mediation agreement provides to the contrary, the mere fact that the parties have agreed to try and resolve the dispute by mediation or have had a mediation is not confidential. The confidentiality therefore attaches to the events during the mediation process rather than the bare fact that the parties are about to or have embarked on mediation.

Question 18

information given to the mediator

Answer 18

Any information given to the mediator during the process and in particular anything revealed to him or her during the private meetings of the parties is also protected by the confidentiality obligation. The mediator cannot reveal this information to the other side or any other party unless the party providing the information expressively consents. The duty of confidentiality will apply even after the mediation process has been completed or terminated.

Question 19

Can the mediator enforce the confidentiality clause?

Answer 19

Unlike the without prejudice rule which exists only for the benefit of the parties in mediation the express or implied term of confidentiality exists not just between the parties themselves but also between the parties and the mediator. The parties cannot waive confidentiality so as to deprive the mediator of his or her right to have the confidentiality of the mediation preserved. Confidentiality must be waived by all parties to the obligation.

Question 20

When will the court override the confidentiality provisions

Answer 20

the obligation of confidentiality is not absolute and the court has power to permit evidence of confidential communications in mediation to be given or produced if it is in the interests of justice to do so.

Situations in which the court may override confidentiality and inquire into the events that occurred during the mediation which may also include an order requiring A mediator to disclose documents or be called as a witness to give evidence about the mediation are as followed:

• 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 mediation or arising out of their conduct at the mediation.

To permit confidentiality to be overridden in anything other than in very exceptional and limited circumstances will seriously undermine the mediation process

Question 21

Other exceptions of confidentiality

Answer 21

Confidential information may have to be disclosed by the mediator(even in the absence of a court order). These exceptions may also be spelled out in the mediation agreement

• where disclosure is required by law
• disclosure is necessary to prevent risk of harm to the public at large
• disclosure may be necessary if the mediator believes that there is a risk of significant harm to the health, life, or well-being of a person or a threat to their safety if confidential information is not disclosed.
• Disclosure is necessary to prevent criminal activity or prevent the mediator being charged with colluding in the Commission of an offence or if a failure to disclose the confidential information may amount in itself to a criminal offence on the part of the mediator.

Question 22

The without prejudice rule in mediation

Answer 22

The without prejudice rule an exception stupid applied to communications passing between the parties made in the context of a mediation, so generally speaking, communications that take place in relation to or during the mediation which are made for the purposes of settling the dispute, cannot beery light on or for two in subsequent court proceedings if the mediation is unsuccessful. The court will generally respect the without prejudice, confidential nature of mediation, and will not usually investigate why mediation failed to resolve them settlement and in normal circumstances the court will refuse to order disclosure of documents and communications that took place within mediation including any notes made or retained by a mediator.

The court may grant an injunction to restrain a party from referring to any part of the discussions that took place during the mediation.

The without prejudice rule will certainly apply to communications aimed add settlement that take place between the parties before the mediation agreement is signed, or before the mediation commences. As well as communications that take place during the course of the mediation. The following communications will be protected from disclosure by operation of the without prejudice rule:

• any oral or written communications between the parties or the parties and the mediator made specifically for the purposes of exploring settlement, such as position statements, correspondence about the mediation and offers or concessions weather made before,during, or after the mediation.
• Communications created for the purpose of trying to persuade the parties to mediate.
• It may also operate to protect information obtained from investigations carried out as part of the mediation process.

Question 23

Communications that are not protected by they without prejudice role in mediation

Answer 23

• the rule will not protect documents that were not created for the purpose of exploring settlement, even if those documents were used in the mediation, if those documents ought to be disclosed as a part of standard disclosure during the course of litigation. It will also not apply to a joint statement made following a meeting of the experts instructed by each party that was created for use in the mediation such as a statement is one that the experts must produce if the court directs it.
• The court can look at communications that took place in a mediation to decide if the mediation resulted in a concluded settlement and the existence all the clause in the agreement to mediate which provides that there is no agreement unless it was in writing and signed by the parties is not sufficient to oust this unusual exception to the without prejudice rule.
• The mediation agreement itself is not protected by the without prejudice raw an it can be produced to prove its terms
• if all parties to the mediation waive privilege, the communications can be placed before the court. However there is no implied waiver of the without prejudice rule simply because a party makes an application for indemnity costs.

Question 24

The attendees

Answer 24

it is very important to identify all of the relevant individuals who should attend the mediation. Factors influencing the selection of the participants include the following:

• who has direct knowledge of the key issues of the case?
• Who is most closely and personally affected by the dispute or the resolution of it?
• If relevant who has the necessary technical expertise?
• Does resolution of any particular issue require expert evidence and the attendance of an expert at the mediation?
• Who has authority to settle the dispute?
• What message will the identity and status of the participants sent to the other side?

Question 25

The position statements

Answer 25

The mediator may ask each party to provide him or her with a statement setting out there case. This is sometimes referred to as a position statement, a case summary, a statement of case, written submission, party statement, or even an issue statement. However this is only likely to be required in more complex cases .

The parties will rarely be asked to prepare a position statement for a case which is being mediated under the small claims court mediation scheme. A position statement is not always required for modest value fast track county court cases referred to a mediator for a time limited, fixed fee mediation through the civil mediation online directory. It will usually always be prepared and provided in multi track cases. However lawyers acting for parties in mediation may consider it that it is useful to prepare one even if it’s not formally requested by the mediator.

Question 26

The key supporting documents
Agreed bundle

Answer 26

the parties should cooperate with one another in relation to the documents that are provided to the mediator and produce agreed bundles where possible. This will be particularly important if the mediator has imposed a maximum page number in relation to the supporting documents that should be provided. The documents should be sent to the mediator by the time specified, and if no time is specified, it would be desirable to let the mediator have these documents at least seven days before the mediation is due to take place.

The agreed bundle should consist of:

• statements of case if proceedings have been issued and detailed letters of claim if they have not.
• Witness statements that have been disclosed by the parties.
• Any expert reports disclosed by the parties.
• Case management orders that have been made so that the mediator understands the procedural timetable governing the dispute.
• Part 36 offers or other offers that have been made but not accepted.
• Any relevant key documents that have been disclosed relating to the liability or quantum issues in dispute. Plans and photographs can be useful visual aid to have available for some types of dispute. It is particularly important to ensure that up-to-date documents are prepared for the mediation in respect of quantum, together with supporting documents such as accounts and receipts.
• Any other relevant correspondence between the parties.

Question 27

The stages in mediation

Answer 27

Before the mediation formally begins, the mediator will usually go to each party’s room for introductions to be affected, to ensure that all present have signed the agreement to mediate so that they are all bound by the confidentiality obligations which it will contain, and to address any concerns anyone may have about the process, or any new issues that may have arisen since the parties agreed to refer their dispute for mediation.

The typical mediation will go through forced key stages:

• the opening stage. This will consist of introductions and each party setting out their formal position in relation to the issues in the case. It will usually take place in the opening joint session.
• The exploration or information stage. This can take place partly in open joint meetings and partly enclosed private meetings, or exclusively in an open joint meeting or alternatively a close private meeting, depending on the preferences of the parties, the issues of the case, and the review of the mediator.
• The negotiation or bargaining stage. This will almost invariably take place in private closed meetings (or closed sessions) with the mediator acting as broker between the parties.
• The settlement (or closing) stage. This will usually take place in joint meetings between all of the parties and or between the lawyers of the parties who will have the task of drawing up the agreement.