Mediation Process Flashcards
Why is it important to know when mediation starts?
- Statutory limitations suspended during cross-border disputes
- An ADR clause may require parties to commence/finish by a particular time
- May be important for binding to know whether an offer was made during or after mediation
- May be necessary to know if mediation had commenced or ended for the purposes of ascertaining whether parties were bound by a particular provision at a particular moment
When mediation begins and ends can often only be ascertained by examining the intention of the parties from facts and circumstances.
Does mediation always follow set stages?
- Mediation is flexible and may not follow the strict stages. May be tailored for each case
The Opening Stage - introductions
- Mediator will visit parties individually to greet them informally and answer questions
- He will clarify who will make the opening statement, and see how they want to be addressed
What takes place in opening plenary?
- Mediator will take a central position with the parties seated closest to him
- Next along will usually be those with authority to settle, lawyers, witnesses, and experts
- Introductions are first, then the mediator may also have them sign another copy of the agreement
- The mediator makes an opening statement, to:
- Introduce himself, personally and professionally
- Explain what the mediation is about, the process, timing, and roles of the parties
- Confirm that he is neutral and impartial, and disclose any interest in the parties
- Explain that he is not there to decide the case
- Explain that the process is flexible
- Explain the confidential nature of the mediation
- Explain ‘without prejudice’, that anything here cannot be used in litigation
- Explain the voluntary, non-binding nature of the process
- Check that the parties present have authority
- Explain the procedure in the event that settlement is reached
Who makes openings statements, and what is contained in them?
- Opening statements by the parties
- More common for counsel to deliver this, but parties will always be invited to add
- Claimant usually goes first
Reasons:
- Let the parties air their views
- Enable the parties to persuade the other side of the strength of their case
- Inform the mediator about the nature of each party’s case
- Point out weaknesses in the other side’s case
- Set out the remedy/outcome sought
- Give each party their ‘day in court’
- Give the other side (and the mediator) the opportunity to assess the personalities involved, their credibility and the quality of their arguments
- A time limit will usually be imposed
- Individuals should be referred to courteously and should make eye contact
- Should be concise yet thorough
- Documents may be referred to
- Team for the party may divide the statement (counsel for legal merits, client for aspect of particular concern, and then expert for technical issues)
- Mediator will then ask if any other member wishes to add something
- He may ask questions for clarification, in an open and neutral way
- He may give the other side the opportunity for questions (again, in an open way)
Will there be witnesses and experts in the opening plenary?
Lay witnesses
- Very rarely, live evidence may be given if there is a dispute with facts
- Usually happens after the opening statement
- The evidence will not usually take the form of XIC and XX, rather the mediator will ask him to give a brief summary of the evidence, and then the mediator will ask questions (the parties may be allowed to ask questions as well)
Expert evidence
- Where there is a dispute between the experts, the parties may decide which version is more likely to be accepted by the court
- Can give evidence in a joint session, or simply be available in private sessions
- In a joint session, there are two options:
- The lawyers can question the expert with a pre-determined time limit
- The mediator can question, but may not XX or challenge, to remain neutral
How does the mediator close the opening joint meeting?
- Mediator will usually summarise concerns, and areas of agreement and dispute
- He will explain how the meetings will be conduct and the role of the parties
- He will explain the confidential nature of mediation
- He will set a timetable, and indicate who he will see first and for how long
When might a joint exploratory stage be used?
- To get the parties to co-operate with each other if they are civil
- agree key issues, and to agree the order of discussion
- work together to explain a particular issue for the mediator
- enable them to plug any gaps
- discuss the figures and costs
What are the purposes of separate private meetings (closed meetings)?
- Give the parties privacy to discuss issues, strategy and proposals
- Enable the mediator to meet with them privately to discuss the dispute, strategies and reality-testing
- Enable the parties to consider proposals and make a considered response
- Enable the mediator to frame and communicate offers in a constructive way
- Two stages usually take place:
- Exploration/information stage
- Negotiating/bargaining stage
What is the point of the exploratory/information stage?
Carrying out a ‘reality test’
- Reviewing and evaluating the strengths and weaknesses
- Focusing attention on gaps and facts which they may have difficulty proving at trial
- Working out best, worst and realistic outcomes at trial
Probing underlying issues
- There are usually many underlying issues (e.g. anger, anxiety, resentment, economic factors)
- Some are only able to move forward once they have vented these issues
What will the mediator have the parties consider in generating settlement options?
- Wider factors that impact (e.g. maintaining a relationship, reputation)
- The consequences of a settlement not being reached
- Evaluating the case in the same way
- Focusing on their interests rather than strict legal positions
- Disclosing additional documents
- Likely outcome of litigation
- Creative options
How will the mediator acting as a shuttle-diplomat, and what are the dis/advantages?
Shuttling offers, concessions, information and responses between the parties
He will judge when to time offers, in order to maximise the chances of settlement
Advantages:
- Offers and concessions made by a mediator will be perceived more attractive
- Effective if the parties have a limited range of negotiating skills or if things are hostile
Disadvantages:
- The parties are not working together
- Confidential information may be leaked by the mediator
- The process may take longer
- The mediator has much control and power
- Because of this, sometimes the mediator will just conduct a joint negotiation meeting
How will the mediator help devise strategies to help the parties work through deadlock?
- Rigorous reality testing
- Re-assessing risk
- Dividing one issue into many issues
- Adjourning the meeting for reflection
- Help the parties save face by blaming him for a proposal, or blaming changing circumstances
- Suggesting that different members of the team brainstorm together
- If deadlock could be resolved with a third-party determination, adjourning to obtain this
- Bridging the gap in monetary offers by changing payment time or scheme
- Making sure they appreciate the risks of proceeding to trial
- Closing final gap by splitting the difference, tossing a coin, charitable donation instead of payment to the other side, leaving remaining issues to trial or another ADR process
- Holding a joint meeting to suggest terms he thinks may be mutually acceptable
- If quantum is the sticking point, leaving quantum for another date or another ADR process
- Actually advising the parties, by evaluating the dispute and giving his professional opinion
- Leading the parties from a positional to a more principled strategy
WHAT HAPPENS AT THE SETTLEMENT/CLOSING STAGE?
- If settlement is reached, mediator will confirm the terms
- The lawyers usually draw it up
- Parties should not leave until the agreement is signed
- Settlement is usually not binding unless signed
- This must be done carefully, so no non-binding terms are added last-minute
- However, the court may uphold ‘surprise’ terms if they are implied anyway (e.g. a 14-day payment due date)
- If the parties are acting in person, the mediator may draw up a heads of agreement or memorandum of agreed terms and ask the parties to sign it
- He will then set out the terms in writing so the legal representatives can then draw up a formal settlement afterwards
- In simple cases, the mediator may draft a settlement agreement himself
- To ensure a party understands the terms and that it is in his best interests, the agreement may provide that it will only be binding if legal advice is obtained within a certain time
- Once the final terms have been agreed, the mediator will usually convene a final joint meeting and read through the agreement. Once satisfied it reflects the parties’ objectives, they will sign it.
What happens if no settlement has been reached?
- Will be recorded
- Will summarise the closing positions
- May invite the parties to adjourn instead
- If the parties don’t want to adjourn, he will remind them of the advantages of settlement over litigation and perhaps suggest other ADR
- He may invite them to let their closing offers remain open for acceptance for a limited period of time
- It is important to agree whether the mediation is to be regarded as continuing during this period