ch 15 Flashcards
why is it important to know when mediation starts and ends?
so we know when confidentiality and without prejudice applies
cross border disputes, statutory limitation period is suspended during disputes
ADR clause may specify how long they have to finish mediation
when does mediation begin and end?
this can only be ascertained by examining the parties intention
what will mediator do directly before 1st meeting?
go to parties’ rooms
check signed agreement
address any concerns
4 stages of mediation?
opening: joint, intro, opening statements, mediators closing remarks
exploration/information stage: either open joint/private, explore issues, exchange info, closed: reality check, explore stategies
negotiation/bargaining stage:mostly closed private meeting, mediator=broker between parties, mediator=shuttle diplomat
settlement/closing stage:joint, draft settlement agreement
what might be best to do when relationships/emotions run high?
decrease amount of joint sessions
what will be covered in mediators opening statement?
effectiveness of mediation voluntary and non-binding nature of process role of mediator and their neutrality confidentiality and without prejudice need to draw up a settlement authority to settle (contactable)
what will be covered in opening statements?
position statement no interruptions lawyer=emphasize client's willingness to settle questions can be asked NOT cross-examine other opening not a response
when will witnesses be dealt with? type of witness?
opening stage
lay or expert
what if no settlement reached?
mediator will record this summarize closing statements may ask the parties to adjourn consider other ADR options invite parties to let their closing offers remain open for limited time
when can mediation be terminated?
settlement reached
settlement is unlikely to be achieved
one party wants to terminate
mediation needs to be adjourned
what must mediator do after if no settlement?
no further invovlement
unless parties seek their further assistance
if parties wish to keep exploring=agree if this is an adjournment
parties can ask mediator to give written opinion/guidance on likely outcome
destroy or return case papers
mediators role after with a settlement?
settlement may provide that any dispute about implementation shall be referred back to mediator
what is med-arb?
if no settlement reached in mediation
parties may invite mediator to act as arbitrator to determine the dispute
may make an award that may be binding or non-binding as agreed by parties
advantages of med-arb?
save time and money
same neutral actor that’s mediator becomes arbitrator
certainty dispute will be resolved
disadvantages of med-arb?
same neutral person (mediator and arb)
in a position of confidential info
stop parties providing confidential info in med for fear of arb
thus ideal to do mediation in joint sessions
