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A Successful Outcome
We are lawyers and mediators who believe in collaboration and consensus to close deals and solve disputes.

Mediation

Disputes and deals are more than legal issues.

To unravel disputes involves more than legal process.

We have provided mediation to Government departments, universities, political parties, local authorities, commerce and industry both as trainers and as mediators.

We believe in a deals and dispute resolution culture of collaboration and consensus that is anchored in common sense.

• Letter to Client Warning of Duty to Mediate
• The Mediator's Role
• The Mediation Agreement
• An example of the mediation process
• Briefing the Mediator - a pre-mediation submission checklist
• The Opening Statement Checklist

Alternative Dispute Resolution - Mediation

There are many forms of Alternative Dispute Resolution (‘ADR’), some binding and some not.  The most commonly practised is mentioned here.  Understanding the different processes is important but it is more important to appreciate the different time, cost and risk factors associated with each process.  Expert advice should be taken before deciding upon any form of dispute resolution process. If you are deciding upon what process to insert within your contracts you need to know the ADR choices available

The CPR encourages the early settlement of disputes and the use of ADR is now widely recognised as a key way of resolving an impasse between parties.  Indeed in the current climate it is necessary to justify why court proceedings are used at all.

Mediation

This is the most widely practised form of ADR.  It comes in a variety of forms but the most prevalent is a facilitative process in which the parties voluntarily agree to allow a third party neutral to assist them to reach their own solution.

The mediation process stems from a party’s agreement to mediate or a court direction.  The agreement to mediate can be incorporated in a contract giving rise to the dispute where it can form part of a separate agreement to mediate.  The courts have held that carefully defined mediation process will be a bar to other proceedings until such time as that process has been carried through.

The mediation process is entirely confidential and without prejudice and should the parties wish to walk away from it, they are entirely free to do so without recrimination.  The most common model for mediation involves the parties preparing brief written statements and relevant documents to the mediator.  The parties will then present their respective cases to each other in the presence of a mediator and will continue to discuss their differences with a view to identifying common ground.  Once the parties’ position has been identified, the mediator may then meet with each party privately.  These individual private meetings are again entirely confidential and what is said at one private meeting cannot be repeated at another with the other party unless express authority has been received to disclose earlier information gained by the mediator.

In these private meetings, the mediator is able to help each side test strengths and weaknesses of their case and to understand more fully the other party’s position so as to encourage each side to explore legal and commercial solutions to their dispute.

Alternative Dispute Resolution - Expert Determination

The mediation moves from initial introductions, exploration of each side’s case, individual discussions on settlement and finally into settlement phase when a vast majority of case settle on terms which the parties agree.  Once an agreement has been obtained, it is recorded back as a contract settlement and if proceedings are on hand, one of the terms will be for those proceedings to be stayed, withdrawn or in some other way not continued with.

Mediation is not a one day process but requires careful preparation if the outcome is going to be successful.

Mediation can be carried out at the same time as formal proceedings.  In some contracts settlement does not occur, parties might ask the mediator for his view on what the terms should be.

Determination by a neutral expert

A variation on mediation is determination by a neutral expert.  Used initially on major construction projects the neutral expert is a respected construction professional who is usually appointed by the parties before the project is initiated.  The expert is provided with basic project information and is kept up to date on the progress of the project when a dispute arises.  The neutral expert can then respond immediately, typically as a mediator in order to facilitate resolution of a dispute.

Expert Determination

Unlike mediation, where the mediator facilities parties to reach their own agreement with neutral expert determination, the third party neutral actually decides the issue and presents an opinion.  Determination by neutral expert is used on major construction projects.  The neutral is usually highly respected construction professional that is appointed by the parties at the beginning of the project and may even be referred to in project contracts.  The expert is updated with how the project is proceedings and should a dispute arise, the expert can then respond immediately.