SA5 ADR: Non-Adjudicative Options

Question 1

What does BATNA/WATNA stand for?

Answer 1

‘best alternative to a negotiated agreement’

‘worst alternative to a negotiated agreement’

Question 2

If parties decide to adopt a conciliator’s suggestions, what will they do?

Answer 2

Sign an agreement that will bind them as a contract to comply with the agreed terms.

Question 3

Are conciliation discussions subject to the without prejudice principle?

Answer 3

Yes.

Question 4

What is the difference between conciliation and mediation?

Answer 4

Conciliator can help the parties map out their dispute and allow them to see areas of common ground. Might suggest some basic terms for resolution, which the parties can refine between themselves with a conciliator’s guidance.

Mediation is more structured, with recognisable stages/phases.

Question 5

When is usually the best time for mediation?

Answer 5

After disclosure (if it can’t be done pre-action).

Question 6

What is a mediation agreement?

Answer 6

A legally enforceable promise that if a dispute arises, parties will attempt to resolve through mediation rather than court proceedings.

Often contained in a contract that governs the parties relationship e.g. a contract of the sale of goods.

Question 7

What are the four stages to standard mediation?

Answer 7

1. A joint opening phase.
2. An information gathering/exploration stage.
3. Bargaining stage.
4. Final settlement stage.

Need not be taken in rigid, strict order.

Question 8

What is the bottom line in mediation? Who knows who’s?

Answer 8

The mediator will know and keep secret both parties bottom line (which can be altered during mediation).

Question 9

Who pays the costs for neutral evaluator?

Answer 9

Usually shared between parties (where evaluator is instructed by both).

Question 10

Once appointed, what may the evaluator wish to establish in a preliminary meeting with the parties?

Answer 10

The ground rules, the docs to be provided, whether a hearing is required and set time limits for each stage.

Question 11

What does the procedure relating to ENE usually provide for?

Answer 11

Each party to make written submissions and give evidence.

Possible to agree that each party should present some/all of their case in an oral hearing.

Question 12

What should the evaluator’s recommendation contain?

Answer 12

May/may not contain detailed reasons.

It depends on the agreement reached between the parties and the evaluator.

Question 13

Can the court order ENE if one party doesn’t consent to it?

Answer 13

Yes. An ENE hearing doesn’t obstruct the parties’ access to the court. It is simply part of the court process.

Question 14

What is a grievance in the context of conciliation?

Answer 14

A complaint that arises in the context of a continuing relationship (particularly between employees and employers).

Question 15

What might be an appropriate course of action for a debt claim to which there is no sustainable defence?

Answer 15

Issue proceedings and apply for summary judgment (won’t want to mediate).

Question 16

What can be done by the court to make a reluctant party consider mediation?

Answer 16

• Court can offer strong judicial encouragement.
• Court can make an ADR order directing parties to consider ADR.
• Order parties to meet/have telephone contact with a mediator who will provide information about mediation/assess whether it would be an appropriate process to settle the dispute.
• Stay proceedings and direct attempted resolution by ADR.
• Make appropriate orders for advanced disclosure.
• Adverse costs orders.

Question 17

Three roles taken on by mediator?

Answer 17

a) Organiser
b) Facilitator
c) Intermediatory

Question 18

What information should a mediator provide to interested parties prior to mediation?

Answer 18

Details relating to their background and experience so the parties can make an informed choice.

Question 19

Is a mediator permitted to act in circumstances where they might benefit financially from the outcome of the mediation, if there has been full disclosure and consent of the parties?

Answer 19

No.

Question 20

What should the mediator ensure the parties understand about the mediation procedure?

Answer 20

The process, terms, fees payable and obligations of confidentiality.

Question 21

If a party wishes to withdraw from mediation at any time, must it give reasons for doing so?

Answer 21

No.

Question 22

What should the mediator ensure once an agreement is reached?

Answer 22

All parties understand the terms of the agreement and consent to it.

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

Question 23

Why have a confidentiality clause in a mediation agreement?

Answer 23

Adds weight to the without prejudice rule, may be wider than it.

Question 24

If a mediation agreement does have a confidentiality clause, is the fact that the parties have agreed to try and resolve the dispute by mediation confidential?

Answer 24

No.

Question 25

To whom does an express/implied confidentiality clause apply?

Answer 25

Between the parties themselves and the parties and the mediator.

Question 26

Who must waive confidentiality in order for confidentiality to be waived?

Answer 26

Parties AND mediator.

Question 27

When will the court override the confidentiality provisions of a mediation agreement?

Answer 27

If it is in the interests of justice to do so.

E.g. if an action is brought against the mediatory for breach of contract/negligence.

An action by a party against their solicitors 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.

Where necessary to prevent risk of harm to public at large/individual/commission of crime.

When required by law e.g. under Proceeds of Crime Act 2002.

Question 28

How may a court ensure a party respects the without prejudice nature of mediation?

Answer 28

Court may grant an injunction to restrain a party from referring to any part of the discussions that took place during mediation.

Question 29

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

Answer 29

• Fraud/misrep.
• Docs which were not created for the purpose of exploring settlement, even if used in mediation.
• Joint statement made following a meeting of the experts instructed by each party that was created for use in mediation as such a statement is one that experts must produce if the court directs under CPR 35.12.
• Court can look at mediation comms to determine if it resulted in a concluded settlement.

Question 30

Is the mediation agreement itself protected by the without prejudice rule?

Answer 30

No.

Question 31

Is the without prejudice rule to mediation impliedly waived by a party making an application for indemnity costs?

Answer 31

No.

Question 32

Can the mediator rely on the without prejudice rule?

Answer 32

No (but yes to confidentiality clause).

Question 33

If one party brings proceedings against the other to the mediation to have settlement set aside on the grounds of economic duress, will legal advice privilege be waived?

Answer 33

No.

Question 34

Early Neutral Evaluation – is it possible for one party to seek an evaluation of some/all of the issues in the case without the agreement of the other?

Answer 34

Yes.

Question 35

What is the difference between mediation and conciliation?

Answer 35

Most conciliation services are statute-based and involve conciliators appointed by an outside body rather than the parties.

Question 36

Under which conditions must an evaluator give detailed reasons for their evaluation?

Answer 36

The evaluator’s recommendation may or may not contain detailed reasons, depending on the agreement reached between the parties and the evaluator