mock mediation - demystifying the process, nottingham - may 2016
TRANSCRIPT
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Mock mediationDe-mystifying the process
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Introduction
Jonathan TardifPartner, Browne Jacobson LLP
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Mediation
Chloe PoskittAssociate, Browne Jacobson LLP
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What is mediation?
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Mediation• “A flexible, [sometimes] voluntary and
confidential form of alternative dispute resolution, in which a neutral person assists parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision whether or not to settle and on what terms”
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Benefits of mediation• Private• Confidential• Voluntary• Flexible• Quick• Relationship preserving• Reduction in legal costs
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The starting point• Litigation should be a last resort• Parties are expected to consider Alternative
Dispute Resolution (“ADR”)– The Pre-action Protocols and Practice Direction
requires parties: to consider and attempt ADR Provide evidence (if required) to show that ADR
was considered• Refusing to mediate could be costly
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The Halsey principles • Nature of the dispute• Merits of the case• Whether other settlement methods have been
attempted• Whether the costs of ADR would be
disproportionately high• Delay• Prospects of success• Other factors
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PGF II SA v OMFS Co 1 Ltd [2013]• Held:
– At first instance: It was unreasonable for D not to (a) respond to
C’s suggested mediation attempts and (b) not to agree to mediate.
– At the Court of Appeal: It is a general rule that silence in the face of an
invitation to participate in ADR is unreasonable, regardless of whether a refusal to engage in ADR might have been justified.
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Northrop v BAE Systems [2014] • Held
– D’s refusal to mediate was unreasonable as: a skilled mediator could have helped the parties
to resolve the dispute; the costs of mediating would not have been
disproportionately high; and there were reasonable prospects of the
mediation succeeding.
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Laporte & Anor v The Commissioner of Police of the Metropolis [2015] • Held:
– D was only awarded 2/3 of its costs on the grounds that:
D had failed without adequate (or adequately articulated) justification to engage in ADR which had a reasonable prospect of success.
The judge dismissed D’s argument that it thought that the Cs would only accept a financial offer which D was unlikely to make, therefore ADR was not appropriate.
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Other issues• Late withdrawal from a mediation• Failure to attend a mediation • Unreasonable stance in a mediation• The future