RICS Guidance Note: Mediation Flashcards
1
Q
What types of mediation are there?
A
- Evaluative - A mediator will tell the parties the merits of the case and how they think a court will decide.
- Facilitative - A mediator facilitates discussions with the parties. The mediator will avoid making an opinion. The questioning will be robust on merits of the case and both factually and legally. This is so that the parties think hard about the risks and chances of success.
2
Q
When is mediation best timed?
A
- Mediation is encouraged before proceedings are issued.
- However, it can take place before, during and after a trial.
3
Q
What are mediation principles?
A
- Mediation is voluntary and without prejudice and confidential.
- Voluntary:
- Parties are encouraged to participate but parties can leave at any time and the mediator can stop at any point.
- Without Prejudice:
- Nothing said in mediation can be used in litigation or referred to in court proceedings.
- Confidential:
- Nothing in mediation can be repeated in the internally or externally. This can be stated in the mediation agreement.
- Confiidential informationn told to a mediator will not be passed to the other party.
- Agreement:
- Once an agreement has been reached and signed it is binding upon the parties.
4
Q
What is the mediation process?
A
- Mediation is usually face to face but can be via telephone and electronic mediations.
- The process is simple and informal
- Parties send documentation to the mediator
- These are excahgned with the other side unless there is confidential information
- A mediator may carry out a site visit
- The opening session is joint where a mediator explains the process and may lead to some dialogue
- The mediator will meet privately with each party once the opening session ends.
- The mediator gets each party to focus on the strengths and weaknesses of their case.
- This is to try and bring each party closer to reach an amicable settlement.
- If a settlement is reached then it will biind each party.
5
Q
What are the advantages of mediation over litigation?
A
- Preserving a business relationship by mutual settlement
- Speed is quicker
- Costs are lower
- Confidential
- Not bound by a set precedent
- Both parties play a key part
- High success rate
- Partties can choose a mediator
- No imposed costs for not mediating imposed by the courts
6
Q
How do you prepare for mediation?
A
- Documentation provided to the mediator
- Parties prepare a position statement
- Provide the mediator withh an indication of the issues
- Parties need to agree terms of the mediation agreement with some acceptable amendments
- People with authoirty should attend or be available on the day including advisers
- Parties need to think about what they want to achieve and what is their bottom line
- Parties to keep track of realistic costs and estimates
7
Q
What are the Civil Procedure Rules Pre Action Conduct?
A
- This is the rules that a Court expects that each party has taken prior to litigation
8
Q
How many pre-action protocols are there?
A
13
9
Q
Can you name some pre-action protocols?
A
- Negligence
- Construction and Engineering
- Housing Condition Claims
- Possession Claims by Social Landlords
- Possession Claims for Mortgage Arrears
- Dilapidation of Commercial Property
10
Q
What are the sanctions for not mediating?
A
- The Court can award costs for a party refusing to mediate or using unreasonable reasons not to mediate
11
Q
Can you state any unreasonable reasons to refuse to mediate?
A
- wanting a day in court
- having to accept guilt
- failure of an unsuccessful meadiation on another dispute
- wanting disclosure
- dislike and mistrust between the parties
- belief of a water tight case
- wide diifference on amount
- ignoring an offer to mediate
12
Q
What are suitable disputes for mediation?
A
- Service Charge
- Dilapidations
- Rent Reviews
- Lease Renewals
- Break Notices
- Rent Arrears
- Possesion actions
- Professional Negligence
- Boundary Disputes
- Rights of way
- Rights of light
- Planning
- Leasehold enfranchisement
- Restrictive covenants
- Insurance disputes and claims
13
Q
What is a Calderbank Offer?
A
- An offer to settle ‘without prejudice asave as to costs’
- Court can only deal with this at teh end of proceedings
14
Q
What does Costs in the litigation/costs in case mean?
A
- That costs will be dealt with at the end of the trial
- Normally the loser pays the winners costs
- This can be changed due to a Part 36 offer or at the Judges discretion
15
Q
What is a Part 36 offer?
A
- A formal offer under Part 36 of the Civil Procedure Rules
- It is without prejudice
- Courts can only deal with it when costs are to be decided.
- Must contain prescriptive information
