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What is mediation?

Mediation as an alternative method of dispute resolution is fast becoming a more popular means of resolving disputes. With the assistance of a mediator parties can negotiate settlement to bring an end to their dispute outside of the court system, in a fast, cost effective manner.

What makes a case suitable for mediation?

Mediation can be used in almost all types of cases. We can help you explore and assess whether mediation is suitable in your circumstances, or your legal advisor may be able to assist you in deciding. Where you require the court to give a specific or declaratory relief, or to rule on a specific legal issue you mediation will not be suitable. However, parties are required to explore mediation in the first instance, and need to consider mediation seriously throughout the lie of the case.

When to mediate?

Timing a mediation right can improve its use as a cost-effective and successful means of resolving the dispute. The optimum time for mediation varies depending on the individual facts. Generally speaking, it is useful to consider mediation once the issues have been defined and before proceedings are issued, which will also aid in saving on costs and time. Additionally, the courts are strongly supportive of mediation following the Philip Garritt-Critchley decision , and refusal to mediate may be a costly error which can lead to serious costs penalties.

Why mediate?

Costs is normally a very important factor for both parties. Mediation is often a good alternative when communications between the parties are difficult, and a mediator can help to over come these by engaging in confidential dialogue, acting as an intermediary to accommodate different personalities and negotiation styles.

Confidentiality is very important, particularly in business situations where long-standing relationships often need to be preserved. Mediation provides protection through confidentiality and privilege, allowing companies to avoid negative press or potentially harmful precedents from being in the public domain.

Mediation can also lead to outcomes not available via the court, particularly in light of the fact that mediation is a far faster means of resolution – mediations can be organised within a couple of days or weeks. As well as a settlement, what else do you get out of mediation?
The scope of remedies available through the court or even arbitration may not be in the parties best interests from a business, commercial, or personal perspective. The mediation takes into account the commercial or personal circumstances of those seeking resolution and allows for a much more practical resolution in the long term. Anything can be agreed unlike in a Court judgment where the Judge only has limited powers as to what he can do such as order money be paid.

How do you select a mediator?

Parties agree on the appointment of a mediator. If they cannot agree, they can ask a third party (eg a mediation service provider) to select a suitable mediator on their behalf.

The parties can select the person they consider appropriate to mediate their matter, depending on the nature of the dispute. The mediator may be a lawyer or someone with technical expertise or experience in a particular sector relevant to the issues in dispute.

Police penalised for failing to mediate

The police have become the latest litigants to fall foul of the increasing willingness of the courts to apply costs sanctions against parties who unreasonably refuse to mediate. In Laporte v The Commissioner of Police for the Metropolis the police successfully defended a claim. They asked the court for costs to be assessed in theirContinue Reading

Further hike in court fees proposed

Issue fees for claims worth over £10,000 are set to rise following the latest consultation on so-called “enhanced” court fees. On 16 January 2015 the Government published its response to its consultation, announcing that the fee to issue a claim to recover more than £10,000 will rise to 5% of the value of the claim,Continue Reading

When “without prejudice” may not apply.

In Avonwick Holdings Ltd v Webinvest Ltd the Chancery Division considered the use of ‘without prejudice’ as a topper for letters and emails. The case concerned draft heads of terms over the restructuring of the defendant’s obligations under a loan agreement after Webinvest had defaulted on a debt due. Avonwick’s solicitor started marking correspondence betweenContinue Reading

Cast iron case no reason to refuse mediation

Mr Justice Ramsey has backed the transformative power of mediation to resolve commercial disputes by finding that BAE was unreasonable in refusing to mediate, even though it reasonably believed that it had a strong case.  However, the Defendant’s failure to accept an offer which it did not beat was also unreasonable, so it was aContinue Reading

New Debt Protocol Proposes Mediation

The Civil Procedure Rule Committee (CPRC) has produced a draft debt protocol. The CPRC hopes to introduce the new Pre-Action Protocol for Debt Claims (“the Debt Protocol”), and a revised Pre-action PD in April 2015. The draft protocol, which applies to any business (including a sole trader) claiming payment of a debt from an individualContinue Reading

Unreasonable refusal to mediate

An unreasonable refusal to mediate will be punished by a costs sanction. This was re-affirmed by the Court of Appeal last year in the case of PGF II SA v OMFS Company Limited. The High Court has recently awarded indemnity costs against a defendant that persistently refused to mediate. In Garritt-Critchley v Andrew Ronnan andContinue Reading

Court warns lawyers to comply with rules.

Compliance with the CPR rules is going to be strictly enforced, and those who fail to comply will be punished. So says the Court of Appeal in the infamous “Plebgate” case of Andrew Mitchell v News Group Newspapers Limited. The case was a defamation claim regarding the Sun’s publication of allegations about Mr Mitchell’s behaviourContinue Reading

Mediation Settlement Agreements

Who should draw up a settlement agreement and what terms should it contain? Parties advising litigants need to take care, particularly if the settlement involves property and/or shares, because of the formalities required for transfer and the potential tax implications.  The mediator also needs to be aware if they help the parties to draw upContinue Reading