It’s not fair!

Gary Webber Tips 2 Comments

In this post Gary Webber considers the role that fairness plays in mediation. Two brothers had at one time been great friends. So much so that they bought a commercial property with the intention of running a business there together. Sadly, they fell out and into dispute. They agreed that the property should be sold but could not agree on …

Top Tips for Joint Meetings

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Parties are often anxious about joint meetings, and try to avoid them. This is completely natural. It takes some courage to go into the room with the person with whom you are in conflict. Lawyers are often also wary of joint meetings. There is a natural fear of a loss of control. Will tempers flare? Will this set back the process? …

Changing trends in mediation?

Jacqui Joyce Trends Leave a Comment

Jacqui Joyce looks at the latest mediation surveys by CEDR and the Civil Mediation Council. The Seventh Biannual Mediation Audit was released this month and shows some interesting changes to the trends of past years. The market The current survey estimates 10,000 cases per annum, just a slight increase on the 9,500 in 2014. It also reports that 70% of …

Reference to a party’s refusal to mediate in statement of case struck out

Jacqui Joyce Law Leave a Comment

A reference in a Reply, to the defendant refusing to mediate, was struck out. It breached the rule against disclosure of without prejudice correspondence. (R (Wildbur) v Ministry of Defence [2016] EWCH 821 (Admin) , Cranston J). Background The Claimant made an application for judicial review and proposed mediation. In granting permission for that review Holman J said: ‘I urge …

CEDR / CMC Mediation audit 2016

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Have your say as a user of mediation services. The CEDR Mediation Audit for 2016 has just been launched with separate questionnaires for mediators and for lawyers who represent parties in mediation. This feedback is used to inform the mediation industry as to trends and developments in the ADR world and includes questions about lawyers’ personal mediation experience, as well …

Time to rethink position statements?

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Practitioners are taught that there are certain things that are part of the mediation process, one of which is the exchange of position statements. There is however no legal or other regulatory requirement for them. Having seen hundreds of position statements we thought it would be helpful to conduct some analysis as to why parties do them, what they hope …

Failure to mediate – failure to mitigate?

Jacqui Joyce Law Leave a Comment

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 Leave a Comment

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 Leave a Comment

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 Leave a Comment

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 …