Mediation: a practical guide

Overview

Everything You Need To Know About Mediation

Do you know how to get the best out of mediation for yourself and your clients?

Do you know how to set up, prepare and conduct yourself at mediation?

Are you aware of the advantages and benefits of mediation, and of the pitfalls to avoid?

In 1999 judges were given the power to suggest that opposing parties try mediation rather than proceed straight to litigation, thereby saving both money and stress. More than a decade on, and with the court system increasingly overstretched, mediation is being used as a valid, dynamic, confidential and extraordinarily effective process for dispute resolution.

This Mediation Briefing will guide you through every aspect of the process, from deciding whether a dispute is suitable for mediation, through the arrangement and preparation process, and on to the actual mediation and its resolution. The Briefing also guides the reader through the different types of mediation, from its use in the workplace through to cases of clinical negligence.

This Special Briefing covers

• Advantages and disadvantages of mediation.

• Why mediation is successful.

• Suitability of a case for mediation.

• When to use mediation.

• Selecting a mediator

• Costs involved vs benefits achieved

• Preparation before mediation

• Legal aspects of mediation, including use of information revealed in mediation

Who should read this Briefing?

• Lawyers
• Accountants
• Surveyors
• HR Professionals
• Other professionals involved in mediation
• Individuals taking part in mediation

Content

1. What is mediation?

• How is mediation practised in the UK?
• Advantages and disadvantages of mediation
• Why is mediation successful?
• Some mediation providers in the UK

2. Suitability of the case for meditation

• Suitability
• Timing
• Case factors favouring mediation
• Factors possibly militating against mediation

3. Arranging a mediation

• Client agreement
• Getting the other side to agree to mediation
• Selecting the mediator
• Length of the mediation
• Venue for the mediation
• Costs
• Checklist for arranging a mediation

4. Before the mediation

• Preparation for the representative
• Preparation with the client
• The position statement
• The mediation agreement (also known as ‘the agreement to mediate’)
• Guidance for your conduct in a mediation

5. At the mediation

• The opening statement at the joint session
• Exploration in private sessions
• Negotiation
• Bridging the hard gap and some mediation techniques
• Techniques
• Drawing up heads of terms or a consent order

6. After the mediation

• The case settled at mediation
• The case did not settle
• Use of information or documents gained at a mediation
• Was an agreement reached at mediation?
• Bad faith negotiating at mediation

7. Mediation in different sectors

• Employment and workplace mediation
• Workplace mediation
• Employment mediation
• Shareholder, company and partnership disputes
• Construction
• Financial services
• Mediation in family disputes
• Community mediation
• Mediation in education
• Commercial litigation
• General litigation
• Personal injury
• Clinical negligence
• Probate and inheritance claims
• Mediation in other jurisdictions

Appendices

• Position Statement
• Mediation Agreement
• Tomlin Order
• Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters
• Checklists– arranging a mediation, preparation with the client, guidelines for behaviour at the mediation
• Civil procedures rules (CPR)
• Practice direction 31 (HONG KONG)
• Kodeks Postepowania Cywilnego (Poland)
• Useful Information

Authors

Alex Bevan

Alex Bevan is a founder shareholder and technical director of ADR Group, one of the two main UK providers of alternative dispute resolution. He is a director of law firm Bevans which specialises in employment and commercial litigation with an emphasis on financial services disputes. He also regularly presents seminars on ADR and is the author of Alternative Dispute Resolution (Sweet & Maxwell), and co-author with Guy Hollebon of Mediation in the Workplace (WoltersKluwer UK) and Conduct and Discipline (WoltersKluwer UK).

Guy Hollebon

Guy Hollebon is a Director of Bevans Solicitors, specialising in all aspects of employment law. He is Head of the Employment Department and senior member of the ADR department. Guy has been an accredited mediator with ADR Group since 2004. He was appointed a part-time Employment Judge in 2009.

Lucinda Bromfield

Lucinda Bromfield is an employment solicitor at Bevans, specialising in all aspects of employment law and alternative dispute resolution. She has a particular interest in representing clients at mediations and round-table negotiations. She qualified as a community mediator in South London in 2006 and as a workplace mediator with the TCM Group in 2007.