For Lawyers
Mediators are not here to replace the work you do. We can offer an impartial neutral to assist where negotiations have reached an impasse. Mediation can be moulded to each participant's needs, and we can work with you and your client together to understand what matters the most to them. Your preparation for a mediation is invaluable. If you save your client anxiety and enable a settlement that works for them… you will have a client for life.
Non-Court Dispute Resolution isn’t “alternative”…it’s always an option…
​ A post Churchill Era...
Mr Churchill refused to use the Council’s complaint procedure in a case of invasion of Japanese knotweed onto his property. The appeal court ruled (in favour of the council) that a court could lawfully order a stay for this purpose. Whether such an order was needed depended on the circumstances of the case, and must of course not cause obstacle to access to a fair trial (Article 6) save for being proportionate to the legitimate aims of settling the dispute fairly, quickly and at reasonable cost. Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
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Churchill prompted the 2024 amendments to the CPR. Promotion or use of alternative dispute resolution is now embedded within the overriding objective (CPR 1.1 (2) (f). Courts may now order a stay or even mandate that mediation or some other alternative non court means of settlement be attempted.
No matter the course your case takes, we strongly second the advice of the Jackson ADR Handbook. Be ready to justify with your reasons as to why ADR isn’t feasible in your case, or endeavour to try it! You may be surprised with the outcome.
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How to prepare for Mediation
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Prepare a full risk assessment, gaining a picture of your client’s objectives and prospects of success in advance. If your case is so strong you feel that mediation is of little use or a mere tactic deployed by your counterpart - document and evidence your advice and view carefully. Be prepared to disclose your reasons for not engaging with mediation to the court. ​
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​Prepare a bundle of documents relevant to the mediation in advance. Your professional duties require you to disclose what is necessary to engage meaningfully in mediation with good faith. The CPR expects you to place your cards on the table - anything crucial that would be shared in litigation should be shared in mediation. What is shared for the purposes of mediation alone, has the benefit of confidentiality. The mediator does not need everything, but they will need a thorough understanding of the issues at stake, and able to test the strengths of each participant’s objectives. You may request your mediator to keep some information confidential from the other participants. However, bear in mind that the Mediator has ethical duties to uphold.
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Ensure that your client understands the process. The Mediation can be designed around the participants and is informal and voluntary. All are expected to take part in the process in good faith, and what is discussed cannot later be relied upon in court. Confidentiality is key to this process, and courts will respect and enforce this principle (Venture Investment Placement v Hall [2005] EWHC 1227 (Ch)).
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Mediation is non-adversarial. Come prepared to engage in dialogue, listen to your client’s interests and motivations, as well as the other participants. It can become emotional for your client, and the Mediator is there to ensure they are heard and understood.
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Ensure that your client attending as the authority to settle the dispute, or you have their authority to settle on their behalf. Anyone else who attends must sign a confidentiality agreement.
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If a settlement is reached, it will usually only be considered legally binding and enforceable - if it is placed in writing and signed by the participants (Brown v Rice [2007] EWHC 625 Ch, but consider AB v CD Ltd [2013] EWHC 625 (Ch)). If the proceedings are coming to a close but you have achieved partial agreement - it is very important to make a record of what has been agreed on. Failure to do so will mean that you will not be able to rely on it once the Mediation has come to a close!
