Down with Protocols!

Gary Webber Law, Tips, Trends 2 Comments

The Civil Justice Council has published an interim report on ADR in Civil Justice. They invite submissions on that report ahead of a final report to be submitted to Government. One of the topics discussed in the report is that of pre-action protocols (para 5.10 at page 25). The report states protocols “have undoubtedly influenced parties to exchange adequate information …

Trust me – I’m a mediator!

Sue O'Brien Tips 0 Comments

It is fundamental to the success of a mediation that the parties trust the mediator. When parties come together for a mediation, trust has usually broken down, creating a huge barrier to any useful communication. If both are prepared to place their trust in the mediator and in the mediation process, communication can restart. A good mediator will earn the …

It’s good to talk – in advance of the day!

Sue O'Brien Tips 2 Comments

It is standard practice for mediators to telephone the parties’ representatives, and sometimes the parties themselves, before the day of the mediation. There is enormous value in beginning to build a relationship, in starting to talk about the case, the process and how people see the mediation developing. When I start to look at papers, having been appointed as a …

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

Gary Webber Tips 0 Comments

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? …

Time to rethink position statements?

Jacqui Joyce Tips 0 Comments

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 …

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 …

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 …

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. …