ch 13

Question 1

reasons why mediation works?

Answer 1

skilled in mediator

gives reality checks

creates a balance in negotiating styles

flexible, fast, cost effective

confidential

avoids adverse precedent

avoids emotional stress of court

preserves relationships

mediator can be creative as not constrained by litigation

failure=issues narrowed

as parties both pay for mediator=co=operation

parties are in control

Question 2

what should be done before mediation is considered?

Answer 2

try negotiation

Question 3

what cases is mediation suitable for?

Answer 3

all that can be resolved by negotiation

Question 4

when may mediation not be appropriate?

Answer 4

debt claim=no sustainable defence

Question 5

when can mediation take place?

Answer 5

any stage up to trial

Question 6

if a party wants to refuse mediation?

Answer 6

provide objective reasons

unreasonable=adverse cost order

Question 7

how can the court encourage mediation?

Answer 7

judicial encouragment

make ADR order to consider ADR

direct parties to contact a mediator

stay proceedings

adverse cost order=unreasonable

Question 8

when are mediation fees cheaper?

Answer 8

if done by a court or fixed-fee mediation

ADR providers=more expensive

Question 9

when are mediators usually paid?

Answer 9

in advance of the mediation

can cancel the mediation if they don’t get their payment

Question 10

mediators role?

Answer 10

organize, facilitate and act as intermediary during the process

Question 11

what must mediator do before the process?

Answer 11

contact parties in pre-mediation meeting (could be by phone)

explain costs, how they ought to prepare and their role as mediator to party

check the attendees have authority to settle and whether there are limits on this authority

check if parties are under time constraints

Question 12

mediators role at mediation?

Answer 12

chair the meetings
set agenda
control the form of the day
impose/suggest time limit
control individual and joint meetings
decide if further meetings are necessary
control form of questions
prevent interventions

Question 13

what must mediator do when acting as facilitator?

Answer 13

gather info on case at pre-mediation stage
identify legal and factual issues
encourage parties to treat mediation as their day in court
defuse confrontational/aggressive communications
analyse parties’ strengths and weaknesses
reality checks
encourage parties to have a BATNA and WATNA
review negotiations that already took place
be creative to end deadlock between parties

Question 14

what will mediator do as intermediary?

Answer 14

act as ‘shuttle-diplomat’/go between during mediation

convey offers, concessions and info between parties

record any agreement reached

this only works with the parties TRUST

Question 15

mediators role post-mediation?

Answer 15

parties may want mediator to broker settlement negotiations at a future date

Question 16

what must mediator be careful with?

Answer 16

putting undue pressure on a party to resolve dispute

Question 17

when must a mediator terminate the agreement?

Answer 17

if they believe a settlement to be unenforceable or illegal

or continuing mediation is unlikely to result in settlement

Question 18

mediation and right to withdraw?

Answer 18

mediator explain parties can withdraw at any time

don’t need to give any reason for withdrawal

Question 19

what will be done if agreement reached?

Answer 19

ensure parties understand terms

ensure any files or docs from mediation are securely and confidentially sorted

many mediators destroy notes in front of parties

Question 20

who does without prejudice exist for?

who does confidentiality exist for?

Answer 20

parties

parties AND mediator

Question 21

without prejudice?

Answer 21

communications from the course of mediation aimed at settlement

Question 22

communications not protected by without prejudice?

Answer 22

docs not created for the purpose of settlement
if court needs to decide if settlement was reached and terms
actual agreement of mediation not protected
if everyone waives privilege

Question 23

does legal advice privilege apply in mediation?

Answer 23

yes

Question 24

can parties call mediator as witness?

Answer 24

there will usually be a clause NOT to invite them as witness

only override in interest of justice

Question 25

when can a mediator be sued?

Answer 25

not act with reasonable care and skill (contract)
negligently evaluated the claim
put undue pressure on parties to settle
made misrepresentations
failure to accurately convey offers and acceptances

Question 26

what can happen if settlement reached due to undue pressure?

Answer 26

settlement can be overturned

Question 27

what can happen if mediator inserts exclusion clause to exclude mediator from liability negligence?

Answer 27

unenforceable

UCTA 1977

Question 28

what can happen if mediator goes against ethics?

Answer 28

disciplinary proceedings