unit 5 - Alternative Dispute Resolution: Non-Adjudicative Options

Question 1

Early neutral evaluation - what is it?

Answer 1

• non-binding assessment and evaluation of the facts, evidence and/or legal merits of one or more of the issues in the case or of the case as a whole

Question 2

Early neutral evaluation - is it private

Answer 2

yes

Question 3

Early neutral evaluation - do parties have to accept the evaluation

Answer 3

no

Question 4

Early neutral evaluation - most useful timing?

Answer 4

most effective at the earliest stage but can be used at any stage

Question 5

Early neutral evaluation - procedure?

Answer 5

• manner in which evaluation is conducted = primarily decided by evaluator
• flexible process
• evaluator may have preliminary meeting with the parties to agree ground rules, docs to provide, whether a hearing is required and to set time limits for each stage of the process
• each party normally makes written submissions to the evaluator
• evaluator will evaluate the evidence and the law bearing in mind the submission of each party and produce a recommendation setting out his or her assessment of the merits of the dispute and the likely out come of it

Question 6

Judicial evaluation - procedure?

Answer 6

• Judge will consider the legal + factual issues, evaluate the evidence and any submissions of the parties, and issue a non-binding recommendation and evaluation

Question 7

Judicial evaluation

• Particularly useful if:

Answer 7

o Case raises limited areas of factual dispute
o Significant difference of opinion between the parties about the value of the claim; or
o Where they have differing perceptions of the strengths of the claim or specific issues

Question 8

Conciliation

Answer 8

• No agreed meaning
• Normally involves a neutral third party
• Confidential, without prejudice basis
• Can cover issues and interests going outside the scope of the original dispute
• If unsuccessful = the parties can revert to other forms of legal redress, eg courts
• Conciliator:
  o Might facilitate a negotiation between the parties
  o Might propose a decision if the parties cannot reach one (may be non-binding)
  o Eg ACAS

Question 9

Disputes suitable for mediation

Answer 9

• Suitable for all disputes which raise issues capable of being resolved by negotiation, whatever the subject matter of the underlying cause of action – claims such as:
  o Contract
  o Tortious
  o Consumer
  o Neighbourhood
  o Housing
  o Family
  o Regulatory
  o Public sector
  o Multiple issues eg conflict of law/jurisdictional issues
• Parties may have to bound themselves to DR clause to attempt to resolve a dispute by mediation before litigation

Question 10

Timing of mediation

Answer 10

• Mediation can take place at any stage up to trial
• If cannot take place before issue of claim = best time may be shortly after exchange of statement of case
• Later in litigation = greater the decreased in costs savings
• If after issue = party can consider applying for stay

Question 11

Decision to refuse mediation

Answer 11

Reason should be objectively reasonable on the facts

Party refusing must be prepared to explain and justify it to the court

Question 12

Persuading a reluctant party to consider mediation

Answer 12

it is possible to approach mediator/mediator provider to give a neutral + independent advice about the benefits of mediation, assess whether it would be appropriate given the facts and circumstances of the particular dispute and if so, advice how the process could be tailored to meet the needs of the parties

Question 13

what can the court do to persuade a reluctant party to consider mediation:

Answer 13

1. offer strong judicial encouragement to the parties to mediate their dispute
   a. court cannot compel the parties
2. make an ADR order directing parties to consider ADR
3. can direct parties (not mandate) to make contact with a mediator to consider mediation
   a. parties will have to do more than merely consider = they will be required to meet with a mediator
   b. MIAM is not compulsory mediation
4. Stay proceedings and direct parties to use ADR
5. Assist parties to resolve their dispute by mediation by making appropriate for advance disclosure of information or documents relating to one or more issues in the case on the application of one or both parties
6. Judicial emdaition
7. Adverse costs order if one or both parties have acted unreasonably in refusing to use ADR

Question 14

Mediator’s role
At the mediation

Answer 14

• Mediator will:
  o chair the meetings and manage the process;
  o set the agenda for the mediation and may suggest the order in which issues should be negotiated, and amend it if necessary as the mediation progresses;
  o control the form that the mediation follows on the day (and discuss with the parties and/or decide whether any modifications should be made to the process to meet the needs of the case or the parties);
  o decide when discussions should take place in joint or private meetings;
  o impose or suggest a time limit for delivery of opening statements in the initial joint meeting;
  o decide whether further joint meetings should take place during the negotiation phase in addition to the opening joint meeting;
  o prevent interventions by the other side during the opening statement of the opposing party;
  o control the form of questions that one party may put to the opposing party in the opening joint session.

Question 15

Mediator’s role
Acting as an intermediary

Answer 15

• Mediator = act as a go-between or shuttle-diplomat during private meetings
• Convey offers, concessions, and information, rejections, concessions + counter-offers from one party to another
• Parties can negotiate through mediator as intermediary rather than with each other
• Mediator will keep a record of any agreement reached on individual issues
• For mediator to carry out role, each party must trust and have confidence in the mediator
• Mediator must be impartial, despite acting as devils’ advocate at times

Question 16

Ethical standards of mediator

• Competence

Answer 16

Competent + knowledgeable in process of mediation
o Proper training – CPD
o Should bear the nature + complexity of the dispute

Question 17

Ethical standards of mediator

Independence and neutrality

Answer 17

Must ensure there are no conflict of interest with any of the parties directly or indirectly affected by the dispute

If potential conflict = must be disclosed immediately to the parties

Mediator to only act in such circumstances if parties consent to it

Mediator not to act when they might benefit financially or personally from outcome of mediator

Question 18

Ethical standards of mediator

The mediation procedure
o Mediation should ensure parties understand:

Answer 18

the nature + purpose of the mediation process

Terms of the mediation agreement

Fees payable

Obligations of confidentiality imposed on the parties and mediator

procedure

Question 19

o Mediator should terminate the mediation and inform the parties if they believe:

Answer 19

Settlement to be unenforceable or illegal; or

That continuing the mediation is unlikely to result in settlement

Question 20

mediation; withdrawal

Answer 20

Mediator to explain to parties that they can withdraw at any times and without reason

Question 21

Confidentiality in Mediation

Answer 21

o Term = neither party can reveal any detail of the mediation process or any info obtained during the mediation process without express consent of the other party
o Even in the absence of an express confidentiality clause, one is likely to be implied
o Mediator also owes a duty of confidentiality to the parties
o confidentiality clause adds weight to the without prejudice rule

Question 22

When will the court override confidentiality provisions?

Answer 22

Court has the power to permit the evidence of the confidential communications if it the interest of justice to do so

Question 23

Other exceptions to confidentiality – confidentiality may be disclosed by mediator in some circumstances:

Answer 23

• Where disclosure is required by law
• Disclosure is necessary to prevent the risk of harm
• Disclosure is necessary if mediator believes there is a risk of significance harm to the health, life or well-being of a person
• Disclosure is necessary to prevent criminal activity or prevent the mediator being charged with colluding in the commission of an offence or if a failure to disclose the confidential information may amount in itself to a criminal offence on the part of the mediator

Question 24

The without prejudice rule in mediation: Applies to communications aimed at:

Answer 24

o settlement that take place between the parties before the mediation agreement is signed; or
o before mediation commences; or
o communications that take place during the course of the mediation

Question 25

Mediation: following communications will be protected from disclosure:

Answer 25

• any oral/written communication between the parties or the parties and the mediator made specifically for the purposes of exploring settlement, such as position statements, correspondence about the mediator and offers or concessions whether made before, during, or after the mediation
• communications created for the purpose of trying to persuade the parties to mediate
• it may also operate to protect information obtained from investigations carried out as part of the mediation process

Question 26

Mediation: Communications that are not protected without prejudice rule in mediation:

Answer 26

the court will admit evidence of communications that occurred during a mediation if one of the exceptions to the without prejudice rule can be established

+ the rule will not protect documents that were not created for the purposes of exploring settlement, even if those documents were used in the mediation, if those documents ought to be disclosed as part of standard disclosure during the course of litigation.

Question 27

Can the mediator rely on the without prejudice rule?

Answer 27

• Exists for the benefit of the parties and it can be waived by them
• Not a privilege of the mediator
• If parties waive it = the mediator cannot rely on it to prevent non-disclosure
  o Even if there is a mediation agreement which contains an express provision as to the without prejudice nature of the mediation process

Question 28

Mediation - The attendees
Very important to identify all relevant individuals – factors influencing the selection of participants:

Answer 28

• Who has direct knowledge of the key issues in the case?
• Who is most closely and personally affected by the dispute or the resolution of it?
• If relevant, who has the necessary technical expertise?
• Does the resolution of any particular issue require expert evidence and the attendance of an expert at the mediation?
• Who has authority to settle the dispute?
• What message will the identity and status of the participants send to the other side?

Question 29

Mediation - The position statements

Answer 29

• The mediator may ask each party to provide him or her with a statement setting out their case (position statement)
• Only likely to be required in more complex cases + high value cases
• Rare in cases mediated by the Small Claim Mediation Service
• some parties may consider it useful to prepare one even if not formally requested by the mediator

Question 30

Mediation - Key supporting documents - Agreed bundle

Answer 30

• Parties should cooperate with one another in relation to the documents that are provided to the mediator + produce agreed bundles where possible
• Important when mediator set a max page number in relation to supporting docs
• Docs should be sent to the mediator by the time specified
• Mediator should have it at least 7 days before mediation date

Question 31

Mediation - Key supporting documents - Agreed bundle = what to include=

Answer 31

o statements of case if proceedings have been issued and detailed letters of claim if they have not;
o witness statements that have been disclosed by the parties;
o any expert reports disclosed by the parties;
o case management orders that have been made (so that the mediator understands the procedural timetable governing the dispute);
o Part 36 offers or other offers that have been made but not accepted;
o any relevant key documents that have been disclosed relating to the liability or quantum issues in dispute. Plans and photographs can be a useful visual aid to have available for some types of dispute. It is particularly important to ensure that up-to-date documents are prepared for the mediation in respect of quantum, to- gether with supporting documents such as accounts and receipts;
o any other relevant correspondence between the parties.

Question 32

Before the mediation formally begins, the mediator will usually go to each party’s room for introductions to be effected, to 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 may have arisen since the parties agreed to refer the dispute for mediation.

• The typical mediation will go through four key stages =

Answer 32

(1) The opening stage. 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 (sometimes called a plenary session).
(2) The exploration (or information) stage. 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, depending on the preferences of the parties, the issues in the case, and the view of the mediator.
(3) The negotiation (or bargaining) stage. This will almost invariably take place in closed private meetings (sometimes referred to as ‘caucuses’ or ‘closed sessions) with the mediator acting as broker between the parties.
(4) The settlement (or closing) stage. This will usually take place in joint meetings be- tween all of the parties and/or between the lawyers of the parties who will have the task of drawing up the agreement.