Understand and advise about process of mediation
Form of non-determinative ADR, agreement must be consensual and cannot be imposed by the mediator

CEDR defines it as a flexible process where mediator actively assists parties

When to mediate:

CPR 1.4 solicitor must discuss some form of ADR with client
Mediation can take place at any time during the course of the dispute resolution process (even after judgement, when appeal pending)
Should not be considered as an either or (litigate or mediate)

Setting up the mediation process:

Check for mediation clause, if there isn’t one parties must agree how mediation is conducted and who is going to act as mediator
If not once the parties have agreed to mediation, they need to negotiate a mediation agreement. This records matters such as when the mediation will take place, who the mediator will be, confidentiality and fees.
Parties can select a mediator themselves or request an ADR organisation
Who will pay mediators costs and costs of the venue (usually shared)
Where the mediation will take place
Parties usually agree to pay their own legal costs of mediation
If mediation fails then likely that costs incurred by a party in relation to the mediation will form part of overall costs of the case which will be paid by loser subject to assessment by the court

Preparing for the mediation

Clear understanding of your client’s case and risks of proceeding to trial should mediation not work
Decide who will attend mediation (rep must have authority to settle) legal team, counsel? Experts?
Try to agree a bundle of relevant docs and try to agree a joint case summary prior to mediation setting out the case
Parties may also draft detailed written submissions for the mediator prior to mediation.
Explain to client the way mediation will be conducted and the consequences of it failing

Procedure Overview:

1. The parties sign a mediation agreement which can include the disclosure of documents and information and confidentiality.
2. The parties submit their Case Summaries and documents to the mediator.
3. There is a joint session during which the parties give opening statements.
4. The mediatorholds meetingswith each party in private.
5. The parties agree heads of terms.
6. The parties draft and sign a settlement agreement.

Considerations in selecting a mediator:

Commercial background
Number of mediations
Success rate
Fees
Technical knowledge of type of dispute
Availability
Legal training
Academic qualifications

The mediation:

Way it will work will be set out in the mediation agreement but flexibility is essential

1. Mediator invites each party to make opening statement

2. Each party retires to separate rooms and mediator engages in private sessions with each party to discuss position, concerns, wants and needs (not simply a messenger) he should encourage party to consider various options based on info mediator has got from private sessions

3. Settlement should be recorded in writing and signed by all parties (must be drafted carefully, which may take time but will mean it’s certain). If agreement not completed then there is a change minds overnight.

4. Parties will have to lodge consent order setting out bases on which action has been settled if proceedings have been started

If failure to settle, all is not lost as parties may become more realistic about the risks and merits of their case.
Can walk away of there is a breakdown in trust between the parties, however, unlikely to be cost sanctions for failing to attempt ADR.
Many cases still settle after unsuccessful mediation
Mediations are conducted “without prejudice” basis – nothing discussed or revealed at the mediation may be revealed to the court

1. The parties
Describe the parties to the dispute Names, addresses and any “abbreviations” to be used throughout
2. The court proceedings
When proceedings issues and what were was the application for? What stage has case reached? Concise description of your clients case (don’t need to much detail as mediator will read court docs in mediation bundle Are there any relevant time restraints? Any interim apps/undertakings given by either party and there date? Any case management directions and there date?
3. Costs
What are your client’s costs to date? What do you estimate that your client’s costs will be to trial? Is your client paying privately, are they legally aided, funded by CFA or covered by legal expenses insurance? If client funding privately, say that they wish to avoid costs of preparing evidence, instructing their experts and attending trial
4. Other issues
Are there any matters in the background which you think the mediator ought to be aware of
5. Basis for settlement
Have any offers of settlement been made by either party? What does your client hope to achieve from the mediation? What do you think the opponent hopes to achieve from the mediation? Is there any possible common ground which could form the basis for the settlement?
6. Attendees
Client (individual or representative on behalf of a co) Solicitor, name and firm
Note: When drafting, bear in mind the following: doc will be confidential to you, client and mediator unless otherwise agreed be open in your approach to the mediator, it is quite unlike the approach which you would take to a hearing in court. Mediator is not permitted to pass anything which you or your client says to opponent without permission

Prepare for and participate in a negotiation. Be able to:

identify legal issues in dispute and possible outcomes at trial
recognise strengths and weaknesses of parties bargaining position
Needs and desires of the parties

FOR ALL OF THE ABOVE CHECK THE FACTS IN THE EXAM QUESTION

Basis of settlement between parties
Finalise a settlement

Have you agreed what will happen to the court proceedings?
- Usually requires stay of proceedings and Tomlin order
Have you dealt with any interim apps or undertakings?
- Current undertakings for security for claimant need to be discharged as they will be making a payment
- Current undertakings for defendant need to be amended to allow him to relocate the wild boar and allow the breeding to proceed
What has each party agreed to do?
- Claimant has agreed to purchase a strip of land comprising 48 acres for 500,000
- Defendant has agreed to use the adjacent 48 acres for arable or sheep grazing
- Defendant has agreed to purchase the farm land across the way
- Relocate all the paddocks and sows
- Claimant has agreed to unrestricted use of the land being acquired.
- The agreement in provisional on the defendant being able to acquire the farmland
- Confidentiality
- Entered into joint venture proposition to promote the wild boar meat through hotel and use in menu and 20% discount.
- Logistics of the agreed activities?
  - Local authority approval
  - Relocation and set up of the paddocks
  - Relocation of the herd
  - Timing of the payment from claimant
- Any problems with the agreement?
  - It has to...

#13632 - Preparing For Mediation - Commercial Dispute Resolution

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