The recent Civil Procedure (Amendment) Rules 2013 which came into effect on 1 April 2013 do not force parties to attempt alternative dispute resolution, such as mediation, but they are expected to promote and incentivise parties to resolve their dispute by alternative means.

The development of judicial case management to include cost management, the introduction of costs budgets and a new “proportionality” test for costs are likely to force parties to consider alternatives to trial.

At Edwin Coe we have had some excellent results for our clients at the settlement table or in mediation and we set out below the answers to some frequently asked questions about the mediation process:

What is mediation?

Mediation is a voluntary and confidential process which utilises the services of a neutral third party “a mediator”, who will attempt to facilitate negotiation of an agreed settlement. It offers an alternative method of resolving disputes cheaply and quickly. Mediation can be applied to all, or a discrete part of, a dispute allowing the parties to explore a full range of potential and mutually acceptable solutions.

When can you mediate?

Mediation can be considered at any stage before or during the litigation process including:

• Following completion of the pre-action protocol process • Once a claim has been issued • Whenever settlement negotiations have broken down • Before the final build up to trial

Which cases are appropriate for mediation?

The vast majority of cases are appropriate for mediation, even fraud cases. Mediation should always be considered in the following circumstances:

• When the parties are deadlocked in settlement negotiations • If the dispute is particularly complex in law or fact and this is likely to protract proceedings • If the cost of litigation is likely to be disproportionate to the claim • If the parties wish to settle their dispute in private

But isn’t an invitation to mediate seen as a sign of weakness?

Since the UK Court’s decision to both embrace and commit to alternative dispute resolution such as mediation it is now regarded as good common sense to suggest mediation to the other parties to a dispute. Indeed in some case the Courts will specifically direct the parties to mediate and refusal of a reasonable request to mediate is a potential basis for costs sanctions.

What are the tactical advantages for using mediation?

• The parties can gain an understanding of the parties’ point of view and the mediator is able to test each party’s understanding of the strengths and weaknesses of their cases. • Mediation represents an opportunity for information gathering which can be utilised for the tactical management of the claim if it does not settle. • It presents an alternative forum to correspondence for making, clarifying or refining offers enabling the offeror to adjust the offer on the basis of what has been discussed and to immediately gauge the impact of the offer on the other party. • Should the matter not settle at mediation it allows for better pitching of Part 36 offers going forward based on intelligence gained. • It allows for the parties to explore a range of solutions not open to a Court.

Are mediations successful?

Mediation is a flexible, informal and cost effective process which can be arranged quickly and which aims to achieve a mutually acceptable or “win, win” settlement for both parties. It will be of no surprise therefore that around 80% of mediations result in successful settlement.

For further information or to discuss this article please contact nicola.maher@edwincoe.com.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a limited liability partnership registered in England and Wales (No. OC326366) and is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office: 2 Stone Buildings, Lincoln's Inn, London WC2A 3TH. "Partner" denotes a member of the LLP or an employee or consultant with the equivalent standing. Our privacy notice which we are obliged to give you under the GDPR is available here.

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