Mediation Flashcards
1
Q
Mediation Definition
A
- Mediation: A voluntary, confidential dispute resolution process involving an impartial mediator who helps parties reach a mutually acceptable solution.
- The outcome and terms of the agreement are decided by the parties.
2
Q
Mediation Process
A
- Set piece negotiation
- Forward-looking and focused on parties’ interests
- Mediator helps parties reach their solutions through joint and private sessions
- Parties often accompanied by lawyers in commercial matters
3
Q
Origins of Mediation
A
- Has a long history in many cultures
- Modern mediation stems from the 1976 Pound Conference in Minnesota, USA
- Developed as a response to overly litigious societies, high costs, and delays in the legal system
4
Q
When to Mediate
A
- Can be done at any time
- Commonly used before or during formal dispute resolution processes like litigation
- Tactical considerations should be considered
5
Q
Types of Suitable Disputes for Mediation
A
- Commercial, contractual, civil, family, and international disputes
- Situations where settlement is unsuccessful, cost of litigation is high, private resolution is important, emotions are high, a speedy resolution is needed, litigation is lengthy or complex, or the dispute is cross-border
6
Q
Types of Unsuitable Disputes for Mediation
A
Cases requiring:
* resolution of points of law,
* injunctive relief,
* addressing allegations of fraud or disreputable conduct,
* court orders, human rights or criminal sanctions, or
* policy and public interest issues
7
Q
Status of Mediation
A
- Parties enter into a mediation agreement
- The process is confidential and without prejudice
8
Q
Role of the Mediator
A
- Acts as a facilitator, intermediary, and devil’s advocate
- Ensures confidentiality and that parties agree to terms of the settlement
- Does not decide the case on merits, advise parties, or take sides
9
Q
Mediation Agreement
A
- Includes date, duration, location, identity of the mediator, status, and costs (usually split between parties)
10
Q
Selecting the Mediator
A
- Factors to consider: approach, style, ability to engage with parties, and cost
11
Q
Mediation Procedure
A
- Mediator determines the procedure and may ask for short statements from parties
- Key individuals, principals, decision-makers, and supporting personnel attend mediation
- Location is important for privacy and practicality
12
Q
Reaching Agreement in Mediation
A
- Move to proposal/offer stage, parties start with their “best position” and move towards their red lines
- Mediator works to tease out an offer that may be acceptable to both sides
- Settlement agreement should be documented and signed at mediation
13
Q
Advantages of Mediation
A
- Voluntary,
- cost-effective,
- efficient,
- preserves business relationships,
- flexible solutions,
- confidential,
- culturally sensitive,
- high success rate, and
- control over choice of mediator
14
Q
Disadvantages of Mediation
A
- Adds time and cost if unsuccessful,
- exposes strategy or settlement zone,
- no scope for disclosure,
- strong cases may not be adequately recognized
15
Q
Mediation and the Courts
A
- English courts encourage mediation and impose cost sanctions for unreasonable refusal to mediate
- Scottish courts encourage mediation but do not impose cost sanctions
- The future of mediation may see wider use, more references in standard contracts, and potential regulation
16
Q
Strathclyde Research
A
- Study of contentious construction lawyers in Scotland revealed high settlement rates in various case types such as professional negligence, change to work scope, payment, delay, and damages
- Mediation was found to be a successful dispute resolution method in the construction industry.
17
Q
Mediation (Scotland) Bill
A
- Introduced in 2019, slow progress due to pandemic
- Proposal to make it compulsory for parties to consider mediation
- Court-appointed mediator would discuss the scope for mediation with parties
18
Q
Scottish Mediation: Bringing Mediation into the Mainstream in Civil Justice in Scotland (June 2019)
A
- Recommended legislation for compulsory consideration of mediation
- Referring parties to an Early Dispute Resolution Office (EDRO)
- EDRO report lodged in the process
- Mediation free for Simple Procedure actions (under £5k)
- Court rule changes to place duty on judges to encourage mediation
