ch 13 Flashcards
reasons why mediation works?
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
what should be done before mediation is considered?
try negotiation
what cases is mediation suitable for?
all that can be resolved by negotiation
when may mediation not be appropriate?
debt claim=no sustainable defence
when can mediation take place?
any stage up to trial
if a party wants to refuse mediation?
provide objective reasons
unreasonable=adverse cost order
how can the court encourage mediation?
judicial encouragment
make ADR order to consider ADR
direct parties to contact a mediator
stay proceedings
adverse cost order=unreasonable
when are mediation fees cheaper?
if done by a court or fixed-fee mediation
ADR providers=more expensive
when are mediators usually paid?
in advance of the mediation
can cancel the mediation if they don’t get their payment
mediators role?
organize, facilitate and act as intermediary during the process
what must mediator do before the process?
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
mediators role at mediation?
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
what must mediator do when acting as facilitator?
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
what will mediator do as intermediary?
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
mediators role post-mediation?
parties may want mediator to broker settlement negotiations at a future date
what must mediator be careful with?
putting undue pressure on a party to resolve dispute
when must a mediator terminate the agreement?
if they believe a settlement to be unenforceable or illegal
or continuing mediation is unlikely to result in settlement
mediation and right to withdraw?
mediator explain parties can withdraw at any time
don’t need to give any reason for withdrawal
what will be done if agreement reached?
ensure parties understand terms
ensure any files or docs from mediation are securely and confidentially sorted
many mediators destroy notes in front of parties
who does without prejudice exist for?
who does confidentiality exist for?
parties
parties AND mediator
without prejudice?
communications from the course of mediation aimed at settlement
communications not protected by without prejudice?
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
does legal advice privilege apply in mediation?
yes
can parties call mediator as witness?
there will usually be a clause NOT to invite them as witness
only override in interest of justice
when can a mediator be sued?
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
what can happen if settlement reached due to undue pressure?
settlement can be overturned
what can happen if mediator inserts exclusion clause to exclude mediator from liability negligence?
unenforceable
UCTA 1977
what can happen if mediator goes against ethics?
disciplinary proceedings
