Non-adjudicative ADR

Question 1

Which types of disputes are suitable for mediation?

Answer 1

Mediation is suitable for all types of disputes which raise issues capable of being resolved by negotiation, whatever the subject matter of the underlying cause of action.

Parties may have also contractually bound themselves by a dispute resolution clause to attempt to mediate before embarking on litigation (or arbitration).

Mediation can also be useful for resolving multi-party disputes involving multiple issues.

Question 2

When might mediation not be suitable?

Answer 2

Mediation may not be appropriate in debt claims where there is no sustainable defence as it may be more advantageous to issue proceedings and apply for summary judgment.

Question 3

At what time should mediation take place?

Answer 3

Mediation can theoretically take place at any stage up to trial and even pending an appeal.

If the parties have fully defined the issues, disclosed key documents, and quantified the claim and any counterclaim, then the most advantageous time to embark on mediation will be before proceedings are issued.

If further information or documentation needs to be obtained to enable the evaluation of the strengths and weaknesses of each party’s position to be assessed, there is no reason why the parties could not agree that this should be done in advance of mediation, or as part of the agreed mediation procedure.

If mediation cannot reasonably be undertaken before issuing of proceedings, the best time to attempt it may be shortly after the exchange of statements of case or after disclosure of documents. The later the mediation takes place, the greater the decrease in the cost savings that can result from a mediated settlement. Parties who wish to attempt mediation after issue should consider applying for a stay of the proceedings and a suspension of the court timetable in order to save costs.

Question 4

What may happen if a party refuses mediation at any point?

Answer 4

Any decision to refuse mediation at any point should be objectively reasonable on the facts of the particular case and the party refusing it must be prepared to explain and justify this to the court. If a refusal is judged to be unreasonable, an adverse costs order may be made against that party.

Question 5

What is the role of the mediator?

Answer 5

The mediator will perform an organisational role at the mediation. In particular, they will:

• chair the meetings and manage the process
• set the agenda by suggesting in which order issues should be negotiated
• decide when discussions should take place in joint or private meetings
• impose or suggest a time limit for delivery of opening statements
• control the form of questions that one party may put to the opposing party

Question 6

Give two ways the mediator will act for the parties.

Answer 6

As a facilitator

As an intermediary

Question 7

How can a mediator act as a facilitator for the parties?

Answer 7

By assisting the parties to negotiate in a more effective manner than they would be able to on their own. They will do this in the following ways:

• gather info from both parties at the pre-mediation stage and during about the issues in dispute and their needs and interests
• help parties identify legal/factual issues and their underlying needs/objectives
• help parties communicate effectively with each other
• encourage parties to analyse the strengths/weaknesses of their own/the other party’s case
• review negotiations that have already taken place and encourage parties to reflect on why they failed
• create and use strategies and options to end deadlock between the parties.

Question 8

1. How can a mediator act as an intermediary?

2. When will the mediator’s role as an intermediary be most effective?

Answer 8

1. They will go between parties during private meetings. They will convey offers, information, rejections, and counter-offers.

The parties will negotiate through the mediator as an intermediary, rather than with each other face to face.

2. In order for the mediator to carry out these functions, it is vital that each party trusts and has confidence in him/her. To build up that trust, the mediator must ensure that he is even-handed in his dealings with the parties. He should not do anything that gives the impression that he is not impartial and should not force a solution on the parties.

Question 9

List the ethical standards which a mediator must comply with

Answer 9

competence

independence and neutrality

Impartiality

Ensure parties understand the mediation procedure

fairness

confidentiality

termination of the mediation

Question 10

How can a mediator ensure they are competent?

Answer 10

By having proper training in mediation skills and the process of mediation and continue to refresh and update their skills through Continuing Professional Development.

Question 11

How can a mediator ensure they are independent and neutral?

Answer 11

Ensuring there is no conflict of interest with any of the parties, if such a conflict does exist, it should be disclosed immediately to the parties.

Question 12

If the mediator has a conflict of interest with any of the parties, do they have to refuse to be their mediator?

Answer 12

They do not HAVE to in all circumstances.

If there is a conflict of interest that is disclosed to the parties, the parties can consent in writing to the mediator still being used.

But there are some circumstances where the mediator must refuse to act, even if the parties consent in writing;

• where the mediator might benefit financially or personally from the outcome
• the mediator has had a prior personal or professional relationship with one of the parties

Question 13

How can a mediator ensure that the parties understand the mediation procedure?

Answer 13

Ensuring the parties understand the nature and purpose of:

• the process
• the terms of the mediation agreement]
• the fees payable
• the obligations of confidentiality imposed on the parties and the mediator

Question 14

How can a mediator ensure fairness throughout?

Answer 14

• ensure all parties have adequate opportunities to be involved in the process
• taking care to avoid any party being forced into mediation or a mediation settlement agreement
• the mediator should be careful not to put undue pressure on a party to settle the dispute

Note the duty of fairness does not extend to ensuring that the terms of any proposed settlement are fair to each of the parties.

Question 15

Which elements of mediation are confidential?

Answer 15

The mediator must keep confidential all info arising out of or in connection with the mediation, including the fact that the mediation is taking place or has taken place UNLESS compelled to give full disclosure by law or public policy grounds.

ANy info disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission or unless compelled by law.

Question 16

How can a mediator ensure they are abiding by their duty regarding the termination of the mediation?

Answer 16

The mediator should terminate the mediation, and inform the parties (if appropriate) if they believe a settlement to be unenforceable or illegal, or that continuing the mediation is unlikely to result in settlement.

The mediator should also inform parties that they have the right to withdraw from the mediation at any time, and without giving a reason for doing so.

Question 17

What must the mediator do if an agreement is reached at the end of mediation?

Answer 17

Ensure that all parties understand the terms of the agreement and that they consent to it.

If requested by the parties and competent to do so, the mediator can give advice on how the agreement can be formalised and made enforceable.

Ensure that any files/documents, including any personal notes that are retained following the mediation, should be securely and confidentially stored. Many mediators adopt the practice of destroying any notes they made in front of the parties at the end of the mediation and returning any case papers supplied to the parties.

Question 18

Can any part of the mediation agreement be used at trial if matters progress to that stage?

Answer 18

The mediation agreement will usually contain a term that neither party can reveal any detail of the mediation process or any information obtained during the mediation without the express consent of the other party. Even in the absence of an express confidentiality clause, one is likely to be implied, because it would destroy the basis of mediation if either party could publicise matters that took place between them and the mediator.

Question 19

Is the fact that the parties have agreed to mediation or have had mediation confidential?

Answer 19

No this is not confidential unless the mediation agreement provides to the contrary.

Only the matters which actually took place during the mediation are confidential.

Question 20

Who must consent to a confidentiality clause being waived?

Answer 20

All parties to the mediation INCLUDING the mediator.

Question 21

Can the court ever override the confidentiality provisions?

Answer 21

The court has the power to permit evidence of confidential communications in mediation to be given or produced if it is in the interests of justice to do so.

Question 22

Can the court ever override confidentiality and enquire into the events that occurred during the mediation and order. a mediator to disclose documents or to be called as a witness to give evidence about the mediation?

Answer 22

Yes in certain situations:

• action by one or both parties against the mediator for breach of contract or negligence
• action by a party against their solicitor for professional negligence arising out of their conduct of a claim which was settled at mediation or arising out of their conduct at the mediation.

Question 23

When may confidential information have to be disclosed by the mediator (even in the absence of a court order)?

Answer 23

where disclosure is required by law

disclosure is necessary to prevent risk of harm to the public at large

if the mediator believes there is a risk of significant harm to health, life, or well-being of a person or a threat to their safety if confidential information is not disclosed.

disclosure is necessary to prevent criminal activity

Question 24

Does the without prejudice rule apply to mediation?

Answer 24

Yes, generally speaking, communications that take place in relation to or during the mediation which are made for the purposes of settling the dispute, cannot be relied on or referred to in subsequent court proceedings if the mediation is unsuccessful.

Question 25

Which communications are not protected by the without prejudice rule in mediation?

Answer 25

documents that were not created for the purposes of exploring settlement, even if those docs were used in the mediation

joint statements made following a meeting of the experts instructed by each party that was created for use in the mediation

communications that took place during mediation to decide if the mediation resulted in a concluded settlement

the mediation agreement is not itself protected by the without prejudice rule

Question 26

Who should attend the mediation?

Answer 26

In low-value claims, to maintain cost-effectiveness, the mediation will involve usually only the parties themselves, but complex, high value or multi-party disputes may involve more individuals and a higher degree of preparation.

The key attendees may include the following:

• representatives of the parties
• person with authority to settle
• lawyers
• insurers
• interest groups
• experts
• witnesses of fact

Question 27

What is a position statement and when is it needed?

Answer 27

A position statement is just a statement setting out the party’s case. The mediator may ask each party to provide one, however, this is only likely to be required in more complex cases.

Lawyers acting for parties in mediation may consider that it is useful to prepare one even if it is not formally requested by the mediator.

Question 28

Which key supporting document should the parties provide to the mediator?

Answer 28

An agreed bundle

Question 29

What is an agreed bundle and what does it consist of?

Answer 29

the parties should cooperate with one another in relation to the documents that are provided to the mediator and produce agreed bundles where possible.

The agreed bundle should consist of:

• statements of case
• witness statements that have been disclosed by the parties
• any expert reports disclosed by the parties
• case management orders that have been made (so the mediator understands the procedural timetable governing the dispute)
• Part 36 offers or other offers that have been made but not accepted
• any relevant key documents that have been disclosed relating to liability or quantum
• any other relevant correspondence between parties.

Question 30

What usually happens before the mediation formally begins?

Answer 30

The mediator will go to each party’s room for introductions and ensure that all present have signed the agreement to mediate so that they are all bound by the confidentiality obligations which it will contain, and to address any concerns anyone may have about the process or any new issues that have arisen since the parties agreed to refer the dispute to mediation.

Question 31

What are the four key stages of mediation?

Answer 31

1. the opening stage
2. the exploration (or information) stage
3. the negotiation (or bargaining) stage
4. the settlement (or closing) stage

Question 32

What takes place during the opening stage?

Answer 32

This will consist of introductions and each party setting out their formal position in relation to the issues in the case. It will usually take place in the opening joint session.

Question 33

What takes place during the exploration stage?

Answer 33

Issues in the case are explored and each party’s position in relation to those issues is explored. Information is exchanged.

The mediator can carry out a ‘reality check’ to each party in private meetings and can explore strategies for settlement in private meetings.

This can take place partly in open joint meetings and partly in closed private meetings, or exclusively in an open joint meeting or alternatively a closed private meeting.

Question 34

What takes place during the negotiation stage?

Answer 34

This will inevitably take place in closed private meetings with the mediator acting as a broker between the parties.

Parties make and consider offers.

Question 35

What takes place during the settlement stage?

Answer 35

This will usually take place in joint meetings between all of the parties and/or between the lawyers of the parties who will have the task of drawing up the agreement.

Question 36

What is conciliation?

Answer 36

No single agreed meaning, though it normally involves a neutral third party.

The conciliator may facilitate a negotiation between parties. Alternatively, a conciliator might impose a decision if the parties cannot reach one, though this may be non-binding.

While conciliation is in most respects identical to mediation, it can involve conciliators who are appointed by an outside body rather than the parties.

Question 37

On what basis is conciliation conducted?

Answer 37

On a confidential and without prejudice basis

Question 38

What will result from a successful conciliation?

Answer 38

A conciliation agreement which covers issues and interests going outside the scope of the original dispute;