LAWWORKS MEDI ATI ON Mediation Mediation Contexts for mediation: - - PDF document

Mediation

LAWWORKS MEDI ATI ON

John Hine and Catriona Oliphant

27th November 2006

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

Mediation

Advantages of mediation

• Cheap
• Quick
• Flexible

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

• f 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
• f 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

• f mediation and it does work!”

Mediation

LAWWORKS MEDIATION

www.lawworks.org.uk Email: Lavinia Shaw-Brown, lsb@lawworks.org.uk Phone: 020 7090 7354