Failure to mediate – failure to mitigate?

Jacqui Joyce Law 0 Comments

If you do not mediate in a case in which you are involved as a result of your previous solicitor’s negligence, can this be treated as a failure to mitigate? That was the question that was raised in Orientfield Holdings Ltd v Bird & Bird [2015] EWHC 1963] The claimant had exchanged contracts to purchase a property for over £22m …

ADR clauses in contracts

Jacqui Joyce Law 0 Comments

Parties to major building projects have openly discussed the effectiveness of signing up in advance to their own agreed form of alternative dispute resolution, rather than relying on adjudication or court procedures. The emphasis is on saving costs and keeping the project going. ADR clauses in various guises have been subject to court scrutiny – are they enforceable? There was …

Using mediation to negotiate contracts

Jacqui Joyce Trends 0 Comments

It now appears to be accepted by the vast majority of professionals that mediation is a cheap, quick and effective way to settle disputes. I have long held the view that this process could also be applied to the negotiation of contracts. One area where I have seen this work is in lease renewals under the Landlord & Tenant Act …

Positions and interests

Gary Webber Tips 0 Comments

The overall aim of a mediation is to reach a settlement. The strategy that the mediator will use will depend on whether he or she is an ‘evaluative’ mediator or a ‘facilitative’ mediator. Evaluative mediators will focus on ‘positions’, mainly the legal but perhaps also the other rights and wrongs of the dispute. A facilitative mediator will focus on the …

Compulsory mediation for neighbour disputes!

Gary Webber Law 0 Comments

The judge in this latest case (Bradley v Heslin) started off the judgment with the following words: “Rather to my surprise I find myself trying a case about a pair of gates in Formby”! He went on to suggest a form of wording for directions in boundary and rights of way disputes, which in effect, would make it compulsory to …

Costs jeopardising settlement

Gary Webber Tips 0 Comments

Costs are often a serious obstacle to settlement, even where everything else can be agreed. This is frequently because parties mediate so late in the day and get bogged down in witness statements and disclosure. It is sometimes felt that it is not possible to mediate until all those stages have been gone through so that “we can fully understand …

The current state of mediation

Jacqui Joyce Trends 0 Comments

The Centre for Effective Dispute Resolution (CEDR), in June, published its Sixth biannual audit of the mediation profession and the lawyers that instruct them. The market It is estimated that the current size of the market is in the order of 9,500 cases per annum. This is a year on year increase of about 9% from 2012, although the pace …

Breaking the deadlock

Jacqui Joyce Tips 0 Comments

There comes a point in some mediations when the parties start to despair of ever reaching a settlement. This is often when sugar levels start to drop in the afternoon. At that point the mediator needs to work really hard to keep everyone focused, engaged, positive, and in the building! There are several ways that can be used to help …

Solicitor only mediations

Alan Langleben Tips 0 Comments

Even after over 13 years as a mediator, there are still new experiences. I recently conducted a mediation where two very able and experienced property litigation partners in two prestigious firms attended alone. The issue was quite technical, and they felt that their clients, having given authority to settle, need not be there in person, while being available by phone. …

Negotiating with the devil!

Alan Langleben Tips 0 Comments

Negotiating with the devil! Can you settle with someone you believe to be a crook? This was a focal point in a mediation I conducted last year, and also has been experienced by a colleague. How can a mediator help to resolve a dispute where one party believes, probably correctly, that the other party is dishonest? In my case, once …