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.
Chapter
10. Overview of Negotiation and Mediation
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
12. Principles of Payment
Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare
Payment and banking generally go hand-in-hand. Except for relatively small-value transactions, where cash, payment cards, and, increasingly, forms of e-money are used, payments are usually made through the banking system. This chapter analyzes some of the legal problems arising with payment through the banking system. The first section sketches the basic elements of payment and the way banks make payment. The second section turns to some specific issues — how payment obligations are discharged, whether payment instructions can be countermanded, the availability of funds to payees, and the completion of payment as between banks. The third section examines clearing and settlement systems. In the main the focus of this chapter is on large payments, rather than retail payments.
Chapter
41. Judgments and Orders
This chapter discusses the rules on judgments and orders. Although there is likely to be a delay between judgment being pronounced and the judgment being sealed and served, r 40.7(1) of the Civil Procedure Rules 1998 (CPR) provides that judgment in fact takes effect from the day it was given. After a judgment or order has been pronounced by the court, the next step is to have it drawn up. This chapter discusses settlements; orders made at hearings; form of judgments and orders; general rules relating to drawing up orders and judgments; and register of judgments.
Chapter
4. ADR, Settlement, and Part 36 Offers
In recent years alternative dispute resolution (ADR) has evolved from being a fallback in relation to litigation into an important alternative that may be the preferred option in some cases. This chapter outlines the interface between litigation and ADR, and puts litigation into the context of settlement options. ADR is only a complete alternative to litigation where a full adjudicative option such as arbitration or expert determination is used. In most disputes it is more likely that a case will move between litigation and ADR processes, or be subject to both at the same time where an offer has been made and remains open, but the litigation process continues. The chapter discusses the main types of ADR and their fit with litigation; framing an attempt to settle; drawing up terms of settlement; and making Part 36 offers, especially when costs are a major concern in litigation.
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
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
41. Judgments and Orders
This chapter discusses the rules on judgments and orders. Although there is likely to be a delay between judgment being pronounced and the judgment being sealed and served, r 40.7(1) of the Civil Procedure Rules 1998 (CPR) provides that judgment in fact takes effect from the day it was given. After a judgment or order has been pronounced by the court, the next step is to have it drawn up. This chapter discusses settlements; orders made at hearings; form of judgments and orders; general rules relating to drawing up orders and judgments; and register of judgments.
Chapter
30. Employment tribunal procedure
This chapter looks at the employment tribunal procedure and at the steps that are generally taken before a full hearing takes place, including settlements and early conciliation. Also considered are time limits. Employment tribunals are less formal than other courts. The tribunal panel is usually made up of a judge and two lay members, but a judge can sit alone in certain circumstances. A case has to be brought on a standard ET1 form, and a response on a standard ET3 form. Full details have to be given, and permission is rarely given to amend. Preliminary hearings can be held to sort out issues such as disclosure. There is also an emphasis on settlement if possible.
Chapter
31. Preparing and presenting a case
This chapter provides practical guidance to aid in the preparation and presentation of a case before an employment tribunal. Although it is primarily written from the point of view of the advocate at such a hearing, the material is also relevant to advisors, witnesses and the parties to a case. The text guides the parties to a tribunal case through the whole tribunal procedure from the very beginning. It covers fact management, understanding the law, starting the process—filling in claim and response forms, preparing a schedule of loss, negotiating a settlement, drafting witness statements, disclosure, preparing bundles and advocacy.
Chapter
16. Modern payment systems
D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner
This chapter examines modern payment systems for commercial transactions, where payment using physical notes and coins is clearly inappropriate. Various forms of payment mechanisms and payment systems have been developed. This chapter first considers the nature of a funds transfer and the terminology used to describe a funds transfer operation before discussing credit/debit transfers, clearing and settlement, clearing systems and clearing rules, and the duties of the banks involved in a funds transfer. Finally, the chapter also analyses countermand, completion of payment as between payer and payee, and unwanted payments.
Chapter
10. Competition Act 1998 and the cartel offence: public enforcement and procedure
This chapter describes the system of public enforcement under the Competition Act 1998. Reinforced by the Enterprise Act 2002 and Enterprise Regulatory Reform Act 2013, the Competition Act provides a set of procedural rules of investigation for the enforcement of the Chapter I and II prohibitions. After a section on complaints, it considers the extent to which it may be possible to receive guidance from the Competition and Markets Authority (‘the CMA’) on the application of the Act. It then deals in turn with enforcement of the Competition Act 1998, the criminal cartel offence and company director disqualification. This is followed by an overview of the concurrency provisions, stating that the CMA works hand-in-hand with the sectoral regulators. The final two sections discuss the appeal mechanism under the Competition Act and the possibility of Article 267 references to the Court of Justice.
Chapter
7. Articles 101 and 102: public enforcement by the European Commission and national competition authorities under Regulation 1/2003
This chapter explains the public enforcement of Articles 101 and 102 by the European Commission and the national competition authorities (‘the NCAs’) under Regulation 1/2003. It begins by describing the Commission’s powers of investigation and enforcement, including its power to accept commitments, its leniency programme, the cartel settlement procedure and its power to impose financial penalties. It then discusses the operation of Regulation 1/2003 in practice, with particular reference to the European Competition Network (‘the ECN’) that brings together the Commission and the NCAs. The chapter concludes by providing a brief account of judicial review of the Commission’s decisions.
Chapter
13. The Negotiation Process
This chapter explores the negotiation process. Good communication skills are very important for effective negotiation. Each negotiator should make clear any limits on authority, and whether any settlement will be subject to client approval. Indeed, agenda setting and opening are important in gaining control of a negotiation. It is normal to move through each issue reasonably systematically, making best use of information, analysis, and presentation. It is also important to deal with concessions, offers, and demands effectively to get the best outcome for the client. The negotiator should be able to identify the problems that can arise in a negotiation process and the techniques that may be used to overcome them. If a negotiation is successful, an oral contract is reached; the terms should then be clarified and recorded. Even if the negotiation is not successful, progress may be made with regard to the case.
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
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
20. Conciliation
This chapter assesses conciliation, which is a voluntary process whereby a neutral third party facilitates negotiations between the parties to a dispute and assists them to reach a settlement. In England and Wales, conciliation tends to be court-driven and it is most often used in family and employment cases. In employment cases, the parties must attempt mandatory Early Conciliation with the Advisory, Conciliation and Arbitration Service (ACAS) before a claim is issued in the Employment Tribunal, and conciliation can also be undertaken by ACAS after a claim has been lodged if Early Conciliation did not result in a settlement. In-court conciliation also takes place in family cases in disputes relating to children and money on the breakdown of the relationship between the parties. In addition, a number of independent conciliation schemes exist to help consumers solve disputes in relation to goods or services.
