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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

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

Cover Legal Systems & Skills

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

Cover A Practical Approach to Alternative Dispute Resolution

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

Cover A Practical Approach to Alternative Dispute Resolution

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

Cover Legal Systems & Skills

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 explains 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 a negotiation plan.