Mediation: ADR

In Cumbria Waste Management Limited and anor v Baines Wilson (a firm) [2008] EWHC 786 (QC), the issue was whether the defendant was entitled to disclosure of documents relating to two mediations in which the claimants and a third party, DEFRA, had been involved. DEFRA objected to disclosure. The defendant submitted that, although the documents were prima facie protected from disclosure on the ground of privilege, the claimants had waived that privilege when they pleaded the reasonableness of the settlement which they had reached with DEFRA following the mediations. The documents were clearly relevant in order to assess the reasonableness of the claimants' conduct at the two mediations, in accordance with Muller v Linsley & Mortimer [1996] 1 PNLR 74. The judge held that the defendant's application failed. Disclosure of the mediation-related documents did not fall within the exception to the without prejudice rule set out in Muller. In that case it was the claimants who raised the issue of the reasonableness of the settlement and who sought to deny disclosure of the without prejudice material by which the settlement was achieved. Here, the question was whether a third party's without prejudice material should be disclosed. DEFRA should be allowed to assert its privilege and protect its without prejudice material which might otherwise embarrass it. The case illustrates that the Muller exception to the without prejudice rule will not apply where a third party, who is

A drafting note looking at mediation procedures and model clauses issued by the Centre for Effective Dispute Resolution (CEDR).

This note addresses the role of alternative dispute resolution (ADR) in the context of the public sector and judicial review proceedings, and the relationship between ADR and the government's Dispute Resolution Commitment (DRC).

Can a judge order a stay for mediation, even if it is only one party who wants to do it? ie can one party make an application for a stay for mediation and the judge then make an order for such stay and for mediation to take place?

This is a chapter from the Bloomsbury Professional book The ADR Practice Guide, 3rd Edition, which is your essential guide to commercial dispute resolution. Written by a team of experienced lawyers and CEDR mediators, this practical guide looks at the conceptual, the legal, and the practical framework of all aspects of ADR. In particular, it will provide you with a better understanding of how to choose between different processes for dispute resolution and the key issues involved in advising a client on the ADR option and in taking part in the process, including a detailed explanation of how to set up, prepare for and perform well at a mediation whether as a mediator, a legal representative or a third party. The book also gives an overview of the key arguments about the legal status of ADR and a review of the relevant case law. Chapter 3 and the table of contents are free to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from the Bloomsbury Professional book The ADR Practice Guide, 3rd Edition, which is your essential guide to commercial dispute resolution. Written by a team of experienced lawyers and CEDR mediators, this practical guide looks at the conceptual, the legal, and the practical framework of all aspects of ADR. In particular, it will provide you with a better understanding of how to choose between different processes for dispute resolution and the key issues involved in advising a client on the ADR option and in taking part in the process, including a detailed explanation of how to set up, prepare for and perform well at a mediation whether as a mediator, a legal representative or a third party. The book also gives an overview of the key arguments about the legal status of ADR and a review of the relevant case law. Chapter 3 and the table of contents are free to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from the Bloomsbury Professional book Mediator Skills and Techniques - Triangle of Influence, 1st Edition, which is a clear, practical and essential guide covering the skills, techniques and strategies required in mediation. It is a resource for both beginner and experienced mediators. It also provides insights and resources for lawyers representing clients in mediation, other participants in mediation and those involved in the practice of dispute resolution. Along with examples, case studies, short exercises, precedents, guidance notes and other resources, this book covers topics such as establishing the foundations of effective mediation and managing the mediation process.  

An update on the Civil Mediation Council EGM, which took place on 30 March 2009, to discuss proposals for the introduction of two new mediation registration schemes.

The Practice Direction which applies to the pre-action protocols. On 6 April 2009, it was replaced by Practice Direction - Pre-action conduct.

The European Parliament plenary session, on 2 February 2012, called on the European Commission to examine thoroughly the appropriate legal basis for any measures in the field of collective redress. On 4 February 2011, the Commission launched a horizontal public consultation on a coherent European approach to collective redress. The purpose of this consultation was to identify common legal principles on collective redress.

In Rolf v De Guerin [2011] EWCA Civ 78, the Court of Appeal considered an appeal about liability for the costs of a small building dispute, in circumstances where the defendant had refused several offers to mediate until the eve of trial when it was too late.

An update on Roundstone Nurseries Limited v Stephenson Holdings Limited [2009] EWHC 1431 (TCC), in which the court considered the claimant's application for costs arising out of the defendant's late withdrawal from a mediation.

I would be grateful if you could highlight any guidance you may have on the drafting of a mediation position paper?

On 22 July 2011, the European Commission sent letters of formal notice to certain member states that have failed to implement Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters into their national laws.

The European Commission has highlighted the potential benefits of mediation and reminded member states (other than Denmark, which has opted out) of the deadlines for complying with the EU Mediation Directive (2008/52/EC).

A legal update on the European Commission call for a timely implementation of the EU Mediation Directive (2008/52/EC). EU member states need to implement the EU rules on mediation into their national law system by May 2011.

The European Commission has published a summary of responses to its consultation on the use of Alternative Dispute Resolution as a means of resolving commercial disputes in the European Union. 

The European Parliament endorsed the directive on 23 April 2008. See Legal update, EU Parliament endorses Mediation Directive On 8 April 2008, the Legal Affairs Committee approved the text of the proposed directive on mediation in civil and commercial cross-border disputes. The Committee agreed that mediation must always be voluntary, even if it is advised by a court. It also agreed that the mediator and the parties to mediation should be required not to disclose information regarding the mediation. The next, and final, stage is for the European Parliament to vote on the proposed directive; this is expected to take place in June 2008. If it is approved, the provisions will need to be implemented in all member states within three years. For the full text of the draft directive, click here. Source: European Parliament

The European Parliament has published a draft report on alternative dispute resolution in civil, commercial and family matters.

The European Commission, on 18 January 2012, published its FIN-NET Activity Report for 2010. FIN-NET is a financial dispute resolution network of national out-of-court complaint schemes in the European Economic Area countries, the EU member states plus Iceland, Liechtenstein and Norway, that are responsible for handling disputes between consumers and financial services providers.

A checklist suggesting ways of getting the most out of the mediation process and flagging up some pitfalls to avoid.

Herbert Smith has published the results of its research which assessed how twenty one leading multinational organisations use alternative dispute resolution (ADR). The report concludes that the organisations surveyed adopted four distinct approaches to ADR. These are categorised as: Embedded users, for whom the use of ADR plays a central role in the dispute resolution culture of the organisation. Ad hoc users, who hold generally positive views of ADR processes but consider that a systematic approach to ADR use within their organisation is either unworkable or unnecessary. The negotiators, who prefer direct negotiation as the primary settlement tool. Non-users of ADR. Two of the organisations surveyed did not use ADR at all (although this policy was under review by one of those organisations). Mediation was the most frequent ADR mechanism with expert determination the second most used.Only six of the organisations had undertaken mediations without the assistance of external lawyers. Interestingly, most participants surveyed believed that ADR/mediation clauses were unnecessary in their contracts. The priority for most UK based in-house lawyers surveyed was to retain flexibility in their dispute resolution options at the point of dispute. In contrast, the in-house lawyers who spent a greater proportion of their time on disputes in the US were more likely to be in favour of compulsory ADR clauses. 20% of the organisations surveyed were actively reviewing how they

This Law Firm Publication by Minter Ellison examines the proposed Mediation Bill which was released and introduced to the Legislative Council in Hong Kong, on 30 November 2011. The courts now openly encourage parties to consider mediation, and have under certain circumstances penalised those who unreasonably refused to participate, as a result, the proposed legislation has received a great deal of support during the consultation period.

The International Bar Association (IBA) has adopted new rules for investor-state mediation, drafted by the IBA state mediation sub-committee.

An Article that explains new ways to proactively reduce and manage the likelihood of formal disputes. These methods include appointing a standing neutral, establishing a peer review panel program for employee disputes and implementing a planned early negotiation process.

This Law Firm Publication by NautaDutilh looks at the Luxembourg legislator’s introduction of a new legal framework for mediation in the country; the “New Code of Civil Procedure”. The procedure has broad application to civil and commercial matters at both national and cross-border level, and will sit equally alongside existing judicial procedures.

The official Jackson handbook on alternative dispute resolution (ADR) has been published.

In Aird and Aird v Prime Meridian Ltd [2006] EWCA Civ 1866, the Court of Appeal overturned the first instance judgment in which it had been held, exceptionally and on specific facts, that a joint experts' statement ordered to be prepared in advance of mediation but in the usual form of order under CPR 35.12(3) was subsequently privileged in the litigation. In reaching his decision the first instance judge had taken account of the fact that the case management orders made, including the order to produce the joint statement, had been made to facilitate mediation, and that the case management judge had believed that the purpose of his order for the production of the joint statement was to facilitate mediation, even though it had been made in the usual terms of CPR 35.12(3). The Court of Appeal held that joint statements ordered to be produced under CPR 35.12(3) are disclosable; that the court has no jurisdiction to order the parties to mediate or produce a statement for that purpose and that it was not appropriate to "look behind" the case management order: viewed objectively it was a standard order made under CPR 35.12(3) and, accordingly, the joint statement made pursuant to that order was not privileged and did not become privileged just because it was used in the mediation. This case is a reminder that the court does not have the power to order parties to mediate, even though it can robustly encourage mediation and impose costs sanctions for failure to mediate; an

An update on the Civil Mediation Council's plans to launch two new mediation registration schemes.

Reflecting the growing popularity of mediation as a method of dispute resolution, the London Maritime Arbitrators Association has announced the establishment of a panel of ten LMAA arbitrators who are prepared to accept appointment as mediators. The LMAA has long been involved in the promotion of ADR as a means of resolving maritime disputes, but the establishment of a formal panel of trained mediators is a new departure. We understand that the LMAA recommends that any mediation in which a member of the panel is appointed should proceed on the basis of the LMAA Mediation Terms (2002). However, it is of course possible to appoint any of the panel on other (or no) terms. For further information, see LMAA Mediation Panel Members.

A sample mediation agreement for situations where a dispute has arisen between the parties and they have agreed to mediate.

The question of whether experts should attend a mediation and, if so, what purpose they should serve, arises frequently in commercial mediations. This note explores the issues which arise.

The European Parliament has adopted a Directive on certain aspects of mediation in civil and commercial matters.

This note discusses the administrative arrangements that must be put into place before a mediation.

Case summaries are prepared by the parties to a mediation and exchanged before the mediation. This note identifies points to be included in a case summary.

Unlike preparation for trial, the documentation required ahead of a mediation is concise, in terms of both volume and coverage. A case summary, with any supporting documentation, is prepared by each party and provides an early opportunity to identify the main issues between the parties and provide focus for the mediator.

Preparation for a mediation involves recognising the mindset required to get the most from the mediation. This note contains practical tips to help you do just that.

The settlement phase will follow the negotiation phase of a mediation.  Any agreement between the parties will be formalised. This note suggests methods for breaking deadlock in negotiations, and outlines the points to be considered when formalising any settlement agreed by the parties, including points to be covered in the settlement agreement, and the need to dispose of any court proceedings.

Following the opening at a mediation the mediator will have private sessions with each party to explore the detail and merits of the parties' case.

This note identifies the criteria that parties and their advisers should consider when selecting a mediator, including factors such as accreditation, experience and cost.  It also suggests ways of finding a suitable mediator for a particular dispute. 

Publication of a guidance note on mediators' obligations under the Proceeds of Crime Act 2002 published by the Civil Mediation Council.

This checklist sets out the additional considerations neccessary when a mediation involves several parties (for example, multiple claimants or defendants or group actions).

Isabel Evans, PLC Dispute Resolution and PLC Public Sector have produced two new flowcharts on: Considering alternatives to litigation in the county court. Commencing proceedings in the High Court or county court. (Free access)

PLC Dispute Resolution has published a new practice note, The EU Mediation Directive.

An analysis of the reasons why an advisor may need to persuade the client or opponent to mediate and a look at the factors involved in the persuasion process.

An update on PLC Construction's blog post, Shhh… it’s a secret!.

What is the latest state of play with the proposed European Directive & Regulation with regard to Mediation?

On 31 January 2013, the EU Mediator, António Vitorino, presented his Recommendations resulting from the mediation process on private copying and reprography levies to Commissioner Barnier. In November 2011, Commissioner Barnier entrusted António Vitorino, former Commissioner for Justice and Home Affairs, with the task of presiding over a stakeholder dialogue on private copying and reprography levies.

The Ministry of Justice Research Unit has published a report entitled "Twisting arms: court referred and court linked mediation under judicial pressure". The Report was prepared by academics from UCL and the University of Nottingham Business School and presents evaluations of two mediation programmes in the Central London County Court (CLCC): automatic referral to mediation (ARM) and the voluntary mediation scheme (VMS). The aim of the study was to see what lessons could be learned from automatic referral and judicial pressure to mediate.ARM: Between April 2004 and March 2005 a quasi-compulsory mediation scheme ran at the CLCC. Here the District Judge would seek to persuade a random sample of parties to defended cases to agree to mediation. The sample included over 80% of personal injury (PI) cases. In over 80% of cases in which parties responded to the suggestion of mediation, one or more parties objected to the referral to mediation, with more objections coming from defendants. There were significantly fewer objections in non-PI cases. The study concludes that there may be a benefit in automatically referring non-PI cases to mediation so long as judicial time is not spent trying to persuade those who opt out to change their minds, as the pilot indicated that this was an ineffective use of time. Higher value cases were most likely to accept automatic referral. VMS: This has been operating at the CLCC since 1996 However, since 1998, the settlement rate in VMS cases

A sample letter to be sent to a client following an agreement to mediate.

A sample paragraph to a client following a suggestion of mediation from an opponent or following a discussion with the client and lawyer about mediation, where the client's lawyer considers that mediation is appropriate.

An agreement for use when settling a mediation

Statistics published in the HM Courts Service Annual Report 2007-2008 suggest that there has been significant uptake of the Small Claims Mediation service (which operates in county courts). There were some 3,500 mediations during the year, of which over 2,400 are described as having "ended in successful settlement". Perhaps more revealingly, a survey of 750 participants indicated that 94% would use the service again. The Report also highlights an increase in the online issue of claims, with 67% of specified money claims and 51% of possession claims having been issued online in the year to March 2008. The Report is available on the HMCS website.

A checklist outlining the key stages of a mediation including the opening, exploration and settlement phases.

An update on one aspect of the Technology and Construction Court's judgment in Balfour Beatty Construction Northern Limited v Modus Corovest (Blackpool) Limited [2008] EWHC 3029 (TCC), where Coulson J commented on the relationship between alternative dispute resolution (ADR) and litigation.

A summary of the key provisions to note in the EU Mediation Directive (2008/52/EC) and details of how the Directive is being implemented in England and Wales, including the introduction of mediation settlement enforcement orders (in CPR 78 (Part III)).

In Earl of Malmesbury v Strutt and Parker and ors [2008] EWHC 424 (QB), Jack J considered the relevance to costs of the fact that the claimant had adopted a wholly unreasonable stance in a mediation which it had attended. The relevant conduct was the fact that the claimant's best offer at the mediation had been unreasonably high, and had been based upon the claimant succeeding at a forthcoming damages hearing and at an appeal from a decision on issues of law relating to the proper measure of damages. The claimant's stance was unrealistic and led to the judge imposing a 20% reduction of the costs recoverable in relation to the hearing on damages. As a matter of law, the extension of the principle in Halsey to unreasonable conduct in the mediation is logical. However, in this case the judge was able to consider the relevant evidence because both parties had waived any privilege over the WP material generated in and in connection with the mediation. In the absence of such waiver, it may be very difficult to establish any unreasonable conduct such as may give rise to a reduction in costs.

An update on Farm Assist Limited (in liquidation) and The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC), in which Ramsey J considered an application by a mediator to set aside a witness summons.

The Civil Mediation Council (CMC) has published a survey seeking views on what its role and objectives should be. The deadline for responding is 16 October 2009. Note: On 9 December 2009, the CMC published an interim report, summarising the responses to the survey.  For more details see Legal update, CMC publishes interim report on survey.