ch 14 Flashcards
what does facilitative mediator do?
asks questions to test strengths and weaknesses
encourage parties to think of outcome of lit and its costs
focus parties on their underlying objective
assist parties in formulating offers
creative solutions
what won’t facilitative mediator do?
express personal opinion
less interventionist
less control over process
what is primary form of mediation?
facilitative
what does evaluative mediator do?
same as facilitative but goes further
evaluates strengths and weaknesses of the issue
may recommend a form of settlement
how do evaluative mediators evaluate?
legalistic way
is the evaluative mediator evaluation binding?
no
disadvantages of evaluative mediation?
not neutral
some feel they coerce parties to settle
if evaluation favours one side they may become more entrenched
evaluation may be misleading as they might not have all necessary docs
advantages of evaluative mediation?
quicker
reality check
ok if mediator does not impose their opinion
when is it best to receive evaluation?
early in mediation
but can be left til the end then give a non-binding evaluation
what is transformative mediation?
focuses on improving relationships rather than settlement as focus
mediator gives reflective role
parties control process
how long is mediation?
typically up to a day
time-limited, fixed fee=3 hours
complex=2-5 days
what will usually be in mediation agreement?
confidentiality clause scope of mediation practicalities state mediator is neutral and impartial parties won't call mediator as witness settlement not binding until recorded in writing set out costs and expenses
what to consider with attendees of mediation?
who has direct knowledge of case
expert
authority to settle
when may there be many parties in mediation?
high-level complex cases
when is position statement mostly required?
more complex cases
what happens if position statements are required?
time limit to provide (14 days prior to mediation)
can position statements for mediators eyes only be prepared?
yes
key supporting documents?
agreed bundle
confidential bundle
what should be in the agreed bundle?
statements of case WS expert reports case management part 26 offers or other offers relevant correspondance between parties
what is in confidential bundle?
doc that have not yet been disclosed
mark ‘strictly confidential’
other info mediator might need?
issue offers or previous negotiations parties objectives method of funding nature of costs if proceedings already issued costs incurred to date by parties
what does mediator need to do once they have all necessary info?
consider options for settlements
