27 th November 2006 John Hine and Catriona Oliphant LAWWORKS MEDI ATI ON Mediation
Mediation Contexts for mediation: • Civil/commercial • Community/neighbours • Family • Criminal • Political
Mediation Litigation v. mediation • Binding/non-binding • Due process/informal • Rights/interests • Judgment/settlement
Advantages of mediation Mediation Flexible Cheap Quick • • •
Mediation Procedural framework (1) The overriding objective • CPR: procedural code with overriding objective of enabling Court to deal with cases justly (CPR 1.1(1)) • Dealing with a case justly includes saving expense and dealing with cases proportionately, e.g. having regard to amount of money involved and financial position of each party (CPR 1.1(2)) Reciprocal obligations of Court and parties (CPR 1.2 & 1.3) • • Court’s duty actively to manage cases, e.g. encouraging parties to use ADR (CPR 1.4(2)(e))
Mediation Procedural framework (2) • Practice Direction - Protocols: pre-action protocols, and behaviour in cases not covered by any approved protocol (see para. 4) • Commercial Court Guide, Appendix 7: draft ADR Order • CPR 44.3: Court’s discretion as to costs • CPR 40th Update (30.09.05): – extension of period for which Court may stay civil proceedings so that parties may engage in ADR (CPR 26.4) – further encouragement to Court to give directions requiring parties to consider ADR (Practice Direction 29, para. 4.10(9)) • CPR 41st Update (April 2006): amendments to most Pre-Action Protocols to encourage parties to engage in ADR procedures
Mediation Case law: overview • Dunnett v. Railtrack [2002] 2 All ER 850 • Halsey v. Milton Keynes NHS Trust and Steel v. Joy and Halliday [2004] EWCA (Civ) 576 (see further below) • Burchell v. Bullard [2005] EWCA Civ 358 • The Wethered Estate Ltd. v. Davis, Davis and Foundations for Living [2005] EWHC 1903 CH
Mediation Halsey v. Milton Keynes General NHS Trust (1) Held: • To oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right to access the court; • To deprive a successful party of some or all of his costs on the grounds that he had refused to agree to ADR was an exception to the general rule that the costs of litigation should follow the event; • The burden was on the unsuccessful party to show why the general rule regarding costs should be departed from; and • Departure from the general rule on costs was not justified unless it was shown that the successful party had acted unreasonably having regard to all the circumstances of the case.
Mediation Halsey v. Milton Keynes General NHS Trust (2) Has a party acted unreasonably in refusing ADR? Factors to consider include: • Nature of dispute • Merits of case • Other attempts to settle • Cost of ADR • Whether ADR would have resulted in prejudicial delay • Whether ADR had reasonable prospect of success
Mediation Halsey v. Milton Keynes General NHS Trust (3) Points to note: • Clarifies extent to which Court can order unwilling parties to mediate and impose costs’ sanctions where a party refuses to do so • Moves away from presumption in favour of mediation and that unreasonable to refuse to mediate, although Court’s starting point is that most cases are not by their nature unsuitable for mediation • Lawyer’s obligation routinely to consider with client whether dispute suitable for ADR • Court should encourage (e.g. take such serious steps as they may be advised), but cannot compel parties to mediate (NB: ADR is a voluntary process) • Party who refuses even to consider if case suitable for ADR at risk of adverse costs’ finding
Mediation Burchell v. Bullard [2005] EWCA Civ 358 (para. 43) “ Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees escalating it may be folly to do so.” Lord Justice Ward
Mediation What is mediation? Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution."
Mediation What is a mediator? • Neutral figure independent of the parties • Authority figure accepted by the parties as someone who is there to help them find their own solution • A facilitator who assists in re-establishing communications between the parties • A go-between who aims to broker a deal between the parties NB: a mediator does not give legal opinions (unless requested to • by the parties) or impose a decision on the parties
Mediation Mediation: preparatory steps • Select a mediator • Mediation agreement • Arrange a meeting with your client • Exchange statements of case • Preliminary contact with mediator
Mediation At the mediation: overview • Roles of participants: mediator/lawyers/parties • Mediator’s opening statement • Party presentations • Caucuses • Deal/no deal
Mediation At the mediation: the process • Introduction • Provide information • Identify problems • Explore issues • Generate and evaluate possibilities for settlement • Select options • Negotiate • Agreement? NOT FOR WI MPS!
Mediation At the mediation: roles of the professional participants The mediator • –Discloses information to other party –Facilitates discussions –Helps broker a deal, e.g. chases progress The lawyer • –Assists and supports client –Prepares settlement agreement REMEMBER I T I S THE CLI ENT’S DAY!
Mediation At the mediation: mediator’s opening statement • Confidentiality • Without prejudice • Opportunity for parties to clarify points/clear up misunderstandings • Emphasis on mediation being a process • Respect for each other
Mediation At the mediation: party presentations • Ownership by client of dispute and any settlement • Catharsis: importance of letting off steam • “Day in court”
Mediation At the mediation: caucuses • Private meetings between party and mediator • Frank and confidential discussion of party’s real position/real interests • Mediator will only disclose to other party what he/she is authorised to disclose
Mediation At the mediation: if a deal is reached • Ambit and terms of settlement: are the parties agreed? • Documentation of settlement: is this clear? • Enforceability: do the parties have authority to settle?/importance of signing agreement at mediation
Mediation At the mediation: if no deal is reached • All is not lost! • Parties may reach a deal later • Still a valuable exercise: e.g. cathartic process, insights gained and information obtained
Mediation THE LAWWORKS SCHEME • Mediation often the best solution • It should be open to all, including those who can’t afford it • We offer it where at least one party can’t afford it • Our mediators are lawyers trained by recognised mediation trainers • We also offer mediation advisers • We make all arrangements for the mediation for free
Mediation TYPES OF CASES Employment Consumer Housing Contract Mortgages Medical Partnership Personal injury Even – defamation
Mediation ACHI EVEMENTS TO OCTOBER 2006 273 Enquiries 48 Cases where mediators appointed 28 Settled in whole or in part; 2 pending 85 Mediators now joined Panel
Mediation FEEDBACK Very Positive “. . . A real success . . . A very positive way forward for both parties” “Glad it’s all over and thank you“ “Thank you for your intervention - this is my first experience of mediation and it does work!”
Mediation LAWWORKS MEDIATION www.lawworks.org.uk Email: Lavinia Shaw-Brown, lsb@lawworks.org.uk Phone: 020 7090 7354
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