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Mediation Info

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The notes and information provided by this website are not tailored to any particular factual situation. They should be used as a guide but not otherwise reproduced. As with any precedents, notes or commentary, neither the Users’ Committee or the author cannot accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of the material provided by this website.

When JSM and When Mediation?

On the face of it, joint settlement meetings (JSM) and mediation look quite similar. In fact they are quite different. The mediator adds a new element to the dynamics of negotiation which helps to settle difficult cases. Mediation can cost more and this additional cost needs to be justified. Read more

Types of Claims where Mediation is Indicated:

Where Early Settlement is Important

Where this is an important issue for one or both parties, mediation can often produce a settlement. You do not need a trial bundle to settle a claim; nor do you need one to mediate. All that you need to settle by mediation is sufficient information to make a business decision about the case. JSMs, by contrast, usually take place late in the proceedings. Read more

Independence

A central attribute of a mediator, which is emphasised throughout mediator training, is that he or she acts in a neutral and independent manner. Mediators regard a mainly claimant or mainly defendant professional background as irrelevant – in the same way as it is when judges are appointed.

Different Forms of Mediation

Mediation is not “one size fits all”. A one-day mediation is the traditional format and is well suited to intractable disputes. Many mediators on the Register will also offer a 4 hour time limited mediation, telephone mediation and or online mediation. Such approaches can be more cost-effective and proportionate for lower value claims. Other approaches are Early Neutral Evaluation (a joint non-binding opinion from a trusted expert neutral) or arbitration (see PIcARBS, The Personal Injury claims Arbitration Service, www.picarbs.co.uk )

Mediation of Preliminary and Interlocutory Issues

Any mediator on the Register can be appointed at first notification of a claim for a retainer of £25 + VAT per party and will then be available, if needed, for a fixed fee/hourly rate to be negotiated, to mediate on preliminary and interlocutory issues arising during the conduct of the claim as well as on the final settlement terms.

Persuading the other party to mediate and costs orders relating to mediation

The combination of the CPR and recent case law mean that a party that wishes to mediate has significant means to either achieve that objective or put the other party at risk of a significant costs sanction. Read more

Case Law on Penalties for Unreasonably Refusing to Mediate

Reference can also be made, as appropriate, to the case law relating to costs penalties for failing to mediate. In the leading case on this issue, Halsey v Milton Keynes General NHS Trust ([2004] EWCA Civ 576) the Court of Appeal confirmed a court may penalise a party which unreasonably refuses an offer to mediate. It provided a non-exhaustive list of factors which may be grounds for reasonably refusing: Read more

What to Look For in a Mediator’s CV, or in a Pre-instruction Discussion with a Mediator

Professional background
In reviewing this you might want to consider matters such as:
  • Date of qualification as a lawyer or other professional.
  • Read more

Agreement to Mediate – A Checklist Of What It Should Cover

In reviewing this you might want to consider matters such as:
  • Date of qualification as a lawyer or other professional.
  • Read more

Preparing for the Mediation

These are the main steps:
  • Agree to mediate
  • Agree date place and venue of mediation
  • Read more

Mediation Costs – Tips and Traps

The Agreement to Mediate will set out the Mediator’s fee and who will pay it in the first instance. The Register and those administering it do not seek to influence or standardise mediators’ fees. Read more

Signposts to Further Information

The Jackson ADR Handbook by Blake, Susan, Browne, Julie, Sime, Stuart (2013)
www.global.oup.com www.amazon.co.uk
Read more



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