Alternative Dispute Resolution (Mediation)

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Mediation is a must if you want to stay on the right side of the judge and avoid the opposing party using a refusal to mediation against you during the case.

 

Specific attention is being paid by courts to timescales in orders; and the use of Alternative Dispute Resolution (ADR) such as mediation. Practice Direction- Pre-Action Conduct section 1.2(2) and section 8 asks participants to consider ADR methods before going down a more formal route, and the Civil Procedure Rules (CPR) part 1.4(e) asks parties to explore the suitability to mediate. If a mediation offer is not considered or explored, refused or ignored, this is now being seen as unreasonable failure to comply with a rule, practice direction or a relevant pre-action protocol.

 

Recently ignoring a request to mediate (i.e. not responding one way or another) was seen as ‘an unreasonable refusal’ to mediate and incurred costs implications for the offending party (PGF ii SA – v – OMFS Company Limited [2013] EWCA CIV 1288 2nd October Court of Appeal.) Sanctions can be anything, at the judges behest.

 

The mediators opening gambit is to ask you 'what is the nature of your grounds to dispute the claim'. It is important you remember the burden of liability and strict proof. This is the ideal opportunity to find out exactly what the claimant has against you i.e. refer to the particulars of claim and do not deviate from them. Answer the claimant’s position and claim; and do not expand at this stage. The claimant will have to support their case and answer your disputed issues. This may sound like I am asking you to be difficult, not at all. You are the defendant and only have to defend the claimants claim but you will do no harm to your case by finding out what they have against you.

 

My point being, you don't want the claimant having the opportunity of obtaining all of your argument and then using the mediation to satisfy CPR but not taking it seriously; and then tailoring a WS to defeat your position whilst giving you no such information during mediation. So initially (first 15mins) use the time to gain some idea of the actual substantiation the claimant has against you. It will help you evaluate the need to settle and potential settlement you are willing to go to as the mediation progresses.

 

The mediation itself will be brief and probably seem rushed, as you only have an hour. It is important you get your matters of dispute out early, to leave enough time to negotiate. Take notes of their argument in case you don't settle, this will help others on here to advise re your WS.

 

The mediator will shuttle between the two parties passing information backwards and forwards. They may play devil’s advocate and challenge your position and you will feel under pressure, but don't. The mediator wants to settle and move on, they are paid a flat fee and work on volume, don't be pressured and do have yourself prepared for the mediation with everything you want to say and have ready your various negotiating positions.

 

Settlement can be financial i.e. a lower value over an agreed term of instalments, and can also be in relation to the actual terms i.e. the claimant with notify the defendant of a default in writing and will allow 14 days to remedy this default- as opposed to a term which states the claimant upon default by the defendant can go straight to court to claim the original amount due to a default of this agreement.

 

You really need to work out what you can afford and what you are prepared to pay, over what period and on what terms. That way you do not waste time with basic elements of negotiation. Start with a best case scenario offer and be prepared to narrow the gap between you. That may change the more you find out about their case.

 

Approach this mediation with an open mind and with an appetite to settle, if that is what you want. You have a great opportunity to bring closure on your terms, without having a judgement imposed on you by a judge; and avoid the possibility of attending court, avoiding a possible CCJ, avoiding the stress and the other issues that this dispute or possible judgement against you brings.

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In view of applying the new regulations with regards to European Regulations coming into force 2015/16 into UK Law...mediation will become more mainstream in the litigation process....how it will fit into Consumer Credit Law is yet to be fully established.

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https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/civil_court_mediation_service_manual_v3_mar09.pdf

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https://www.promediate.co.uk/refusing-mediation-in-the-small-claims-court-a-bad-idea/

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Comply with ADR duty or risk costs sanction......

 https://www.lawgazette.co.uk/legal-updates/comply-with-adr-duty-or-risk-costs-sanction/5104080.article

Solicitor banned for bluffing to opposing party over mediation

 

https://www.lawgazette.co.uk/news/solicitor-banned-for-bluffing-to-opposing-party-over-mediation/5104383.article