This chapter provides an overview of negotiation and mediation, both of which can take place at any stage in a case, whether or not proceedings have been issued. Neither has formal procedural rules save for those agreed by the parties. Both can only take place with the agreement of the parties, and both will only result in a settlement with the agreement of the clients. In very broad terms, it might be said that mediation is a facilitated and more structured form of negotiation. Despite the broad similarities, the role of a lawyer in these two processes can be very different. Negotiation is normally carried out by the lawyers acting for each party, often without clients being present. In mediation, the mediator may deal only with the parties, especially in a small case, or both parties and lawyers may attend with the lawyer providing advice to the client at all stages.
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Chapter
10. Overview of Negotiation and Mediation
Chapter
14. Mediation: General Principles
This chapter studies the general principles of mediation, which is a form of neutrally assisted negotiation. The negotiations take place with the help of a neutral third party, within a structured process, in a formal setting, during a defined period of time, all of which help to create an impetus for settlement. The mediator then works to facilitate a settlement between the parties. There is no determination of liability in mediation, and any settlement that is reached is not necessarily based on the underlying legal rights or obligations of the parties. Instead, the parties, with the assistance of the mediator, can reach a solution which is tailored to their real needs and interests. The chapter identifies three styles of mediation: facilitative mediation, evaluative mediation, and transformative mediation. Ultimately, the European Code of Conduct for Mediators, which has been adopted by the Civil Mediation Council (CMC), provides a useful benchmark for determining the minimum rules of professional conduct that should be expected from a mediator.
Chapter
15. Preparation for the Mediation
This chapter identifies the procedures of preparing for mediation. If the parties to the dispute have appointed lawyers, then the lawyers will undertake most of the preparatory work that is required for a mediation. A lawyer will often be required to describe what happens in the mediation process, select and agree the appointment of a suitable mediator, agree the terms of the mediation agreement, and locate and book (if necessary) the venue for the mediation. They are also required to sort out preliminary ground rules for the mediation with the mediator and the other parties such as the documents that need to be prepared and (if necessary) exchanged, decide whether expert evidence should be sought on any issue in advance of the mediation, and who should attend the mediation on behalf of each party. The lawyer who is instructed to attend the mediation will also need to prepare thoroughly for it and this will include consideration of the negotiating strategy and tactics they will employ during the mediation.
Chapter
18. Court Mediation Schemes and Other Schemes
This chapter examines Court Mediation Schemes and other schemes. Time-limited, fixed-cost mediations can take place through Court Mediation Schemes and the Civil Mediation Online Directory. Some courts also operate judicial mediation schemes. There are many industry- and sector-specific schemes, and mediation is now being employed in some criminal cases to achieve restorative justice. Mediation can be used effectively in multi-party or complex disputes, although modifications may need to be made to the process to take account of the multiplicity of parties and/or issues. It can also be used in public sector and regulatory disputes. There is a move towards mandatory information mediation assessment meetings at which the parties are required to consider but not undertake mediation.
Chapter
16. The Mediation Process
This chapter discusses the mediation process, which is flexible and can be tailored to the needs of the parties. When the mediation begins and ends can often only be ascertained by examining the intention of the parties from the facts and circumstances of the case. A typical mediation will go through four stages: opening, exploratory, bargaining, and settlement. It will take place in a mixture of joint open meetings and private separate meetings of the parties. First, the opening statement by the parties should be addressed to the other side. The mediator will then help the parties to work through deadlock in the bargaining phase. Ultimately, the advocate in mediation should harness the mediator's skills and work with the mediator to further their client's interests.
Chapter
12. Negotiation and mediation
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It covers how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare effectively for a negotiation by drafting a negotiation plan. There is consideration of the different approaches to conflict and uncertainty and how they impact negotiation style. The BATNA is defined and discussed. For mediation, a flowchart is provided to guide students through the mediation process. The growing trend towards online dispute resolution is covered.
Chapter
19. Alternative Dispute Resolution
Alisdair A. Gillespie and Siobhan Weare
This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside of the court process. The chapters considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.
Chapter
19. Alternative Dispute Resolution
This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside the court process. The chapter considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.
Chapter
19. International Mediation
This chapter evaluates international mediation. Mediation is particularly effective as an alternative dispute resolution (ADR) process for resolving international disputes because it enables linguistic and cultural differences to be managed and respected to a greater extent than is possible in court proceedings. Moreover, it avoids complex arguments about which court has jurisdiction to determine the dispute and which system of law applies to the dispute. The chapter then looks at the EU Directive on mediation in civil and commercial matters, which sets minimum standards for mediation in EU countries. The United Kingdom has implemented the Directive by adding to the suspension of the operation of the limitation period while the parties are attempting mediation in a cross-border dispute, and providing for mediation settlement agreements in such disputes to be made orders of the court for ease of enforcement by enabling parties to apply for a Mediation Settlement Enforcement Order (MSEO).
Chapter
14. Family Law in Practice
George Patrick Nicholls
This chapter discusses the challenges of practising family law and the reforms enacted to address the crisis in the family justice system since the beginning of the twenty-first century. These reforms included the streamlining of the family courts into one unified single Family Court, the considerable reduction in available funding, and the introduction of protocols before issuing court proceedings. This chapter examines the Family Procedure Rules and the Family Law Protocol and what is required to comply with them. Legal aid, and the types of cases now eligible for it after the reforms and the legal aid statutory charge are discussed. It then considers the subsequent increase and consequences in the numbers of litigants in person and McKenzie Friends, examines the different types of non court dispute resolution, particularly mediation, and looks at the effects of Covid-19 on the judiciary and court staff.
Chapter
10. Alternative Dispute Resolution
Alternative dispute resolution (ADR), particularly mediation, plays a key role in reducing the costs of civil disputes by fomenting the early settlement of cases. This chapter discusses ADR processes; advantages or disadvantages of ADR and litigation; the cost of ADR; reference to ADR; and court involvement in ADR. Adjudicative ADR results in the third party neutral deciding the dispute or difference between the parties. Non-adjudicative ADR processes involve moving the parties towards reaching a compromise agreement between themselves. Rules of court require parties to consider using ADR. Sanctions may be imposed on parties who act unreasonably.
Chapter
17. Reaching a Settlement
This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.
Chapter
22. Early Neutral Evaluation
This chapter describes early neutral evaluation (ENE), which is a non-binding assessment and evaluation of the facts, evidence, and/or the legal merits of an issue in the case or of the case as a whole. It is usually undertaken by the parties jointly, although in some cases it can be undertaken at the request of one party only in relation to their own case. The parties will usually appoint a neutral third party to evaluate the facts, evidence, and law in relation to the issue or case and provide an opinion on the merits. This differs from mediation, which is essentially a facilitative process. ENE is an advisory and evaluative process. It can take place within the court system, in which case the evaluation is usually carried out by a judge. Ultimately, ENE assists the parties to negotiate a settlement by direct negotiations or in mediation.
Chapter
24. Expert or Neutral Determination
This chapter studies expert or neutral determination. Expert determination differs from early neutral or expert evaluation because the parties will appoint an expert to make a decision or formal determination on the issues referred to the expert. The expert can only make a decision within the boundaries laid down by the parties. In this sense, expert determination is a determinative process, rather than a facilitative process (mediation) or an advisory evaluative process (neutral evaluation). Expert determination differs from evaluation because the expert is asked to do more than produce a non-binding evaluation, opinion, or recommendation in relation to the issues in dispute, but rather to determine those issues. The decision is usually final and binding on the parties, and it can only be challenged in court proceedings in very limited circumstances.
Chapter
11. Alternative dispute resolution
This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
10. Alternative dispute resolution
This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
10. Alternative Dispute Resolution
Alternative dispute resolution (ADR), particularly mediation, plays a key role in reducing the costs of civil disputes by fomenting the early settlement of cases. This chapter discusses ADR processes; advantages or disadvantages of ADR and litigation; the cost of ADR; reference to ADR; and court involvement in ADR. Adjudicative ADR results in the third party neutral deciding the dispute or difference between the parties. Non-adjudicative ADR processes involve moving the parties towards reaching a compromise agreement between themselves. Rules of court require parties to consider using ADR. Court decisions indicate the parties may be ordered to use ADR. Sanctions may be imposed on parties who act unreasonably.
Chapter
10. Peaceful settlement of disputes
This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve their disputes peacefully and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (eg compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.
Chapter
16. Alternative dispute resolution
Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the courts or tribunals. ADR includes arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains the differences between the various forms of ADR, why ADR exists, its many advantages (compared to litigation), and its disadvantages. The chapter examines case law dealing with the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.
Book
Susan Blake, Julie Browne, and Stuart Sime
A Practical Approach to Alternative Dispute Resolution provides a commentary on all of the major areas of out-of-court dispute resolution. The text is made up of six parts. Part I looks at the history and range of alternative dispute resolution (ADR) methods. The second part moves on to the interplay between ADR, civil procedural rules (CPR), and litigation. The third part focuses on negotiation and mediation. It looks at styles, strategies, and tactics; preparation for mediation; and the mediation process as a whole. It also touches on international mediation. Part IV is about evaluation, conciliation, and Ombudsmen. The fifth part examines recording settlement. The sixth and final part is about adjudicative ADR. It contains chapters on expert or neutral determination, construction industry adjudication, arbitration, arbitration tribunals, commercial arbitration, international arbitration, awards and orders, High Court jurisdiction in arbitration claims, and, finally, enforcement of settlement and awards.
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