d) If all cases are settled and hardly any disputes go to court, the development of the law will be prejudiced. This is significant in our common law world where our judges do not simply interpret the law but formulate and develop it over the centuries. e) It is difficult to know whether the outcome was fair. For which cases is mediation appropriate and how does mediation fit into litigation and arbitration? The bulk of personal injury cases are settled without the need for formal mediation. Some disputes involving extremes of conflict or imbalances of power may be unsuitable for mediation also where one has a situation where a participant can’t separate the person from the problem. Otherwise, generally, I cannot think of a dispute that is unsuitable to be mediated. Mediation per se does not fit into either litigation or arbitration because it is a form of ADR. Mediation is far better than litigation or arbitration because it means that you have control over the outcome rather than a stranger imposing a decision that means one party wins and the other party loses. Life is not like that, not black or white but all shades in between. People see the same facts and events through different eyes for a whole range of different reasons; to put someone who does not know the parties or the circumstances into a position of deciding the winner cannot be fair. Mediation allows the parties to be in control of the outcome, to find a solution that is anywhere on the spectrum. That solution can consider a whole number of matters that the judge or arbitrator cannot-e.g. personal and commercial circumstances relationships, future business, ability to pay, settlements in kind and so on. The participants decide, and that must be more just than a stranger imposing a judgement in favour of one or the other. What is the procedure in mediation? Firstly, upon the mediator’s being appointed, the mediator will send a standard Agreement to Mediate. This addresses the confidentiality of the matter and should be signed by all participants. The mediator should then request a summary of the dispute from each participant; the mediator does not need all the files or papers to help participants get to a deal. It is usually helpful to have an agreed bundle. Occasionally, there is a pre-mediation meeting. At the first open session, information should be exchanged. The mediator may use CAVNNN. Meaning: • Confidentiality. • Authority to settle from participants remote. • Voluntary attendance. • Neutrality. • No impose settlement-participants decide. The mediator does not advise. • Non-binding. WWW.LAWYER-MONTHLY.COM 33 The mediator will then deal with matters such as time (idle / constraints), refreshments, time table etc to the end of the day. Then follow opening statements/telling the stories with the mediator, stimulating dialogue and using the flipchart. There then follows the exploring stage/negotiating stage and concluding stage. Sessions can be open with all participants or closed i.e. only one participant. What type of civil and commercial mediation cases have you been involved with? • Housing disrepair issues between a London Borough and tenants. • Inheritance issues between four siblings following the death of their wealthy mother. • TOLATA case between mother and son. • Clinical negligence disputes • Employment /Workplace disputes • Rent arrears/termination of tenancy disputes. • Personal injury claims. • Property disputes- both domestic and landlord and tenant. Often, I find in London the participants are from different countries and rarely from the United Kingdom. Having lived and worked both in Singapore and France and advised many foreign clients, I can appreciate that different nationals have a different approach to negotiation and often a different cultural attitude to the mediation process. Also, having been an employer and an employee for decades, this does give me useful knowledge of the workplace. My background as a property and litigation solicitor for 30 years is also very helpful when it comes to helping conclude negotiations in mediations.
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