Mediation Law and Civil Practice

Description

Mediation Law and Civil Practice examines the position of mediation within the civil justice system in England and Wales. It explains and challenges current thinking about mediation, identifying ways for the government and judiciary to improve the delivery of justice through greater trust in the process. It traces the evolution of the relationship between the courts and mediation, discussing all the significant judgments relating to mediation over the last 25 years as well as exploring the key concepts at the heart of mediation and all the latest developments. Mediation Law and Civil Practice also challenges the status quo by casting doubt on some decisions and generates alternative thinking around current legal and practice concepts. As well as updating all case law, the second edition also: Mediators, mediation providers, lawyers, judges academics and students will all benefit from the expert commentary and in-depth analysis in this book. It is also a useful guide for academics and mediation providers outside of the UK who are seeking to influence the development of mediation in their jurisdictions. Foreword Preface Table of Statutes Table of Statutory Instruments Table of European Legislation Table of Cases 1 Mediation and civil justice: the politics of encouraging settlement 1.1 Settlement as a proper concern for civil justice 1.2 The relationship between civil courts and settlement in the US 1.3 Civil courts and settlement in England & Wales 1.4 Settlement as an inevitable concern for civil justice 1.5 Is mediation necessarily about settlement? 2 The status of mediation in terms of the law 2.1 Defining mediation 2.2 Mediation contrasted with other ADR processes 2.3 The formalities associated with the mediation process 2.4 The content and status of a mediation agreement 2.5 Formalities relating to mediation agreements 2.6 A ‘good faith’ commitment by the parties to seek settlement 2.7 Authority to settle Insured parties Groups of companies and partnerships Public bodies Parties under legal incapacity 2.8 Imposing formalities on settlement terms 2.9 The status of mediated settlements 3 Mediators and the law 3.1 The legal status of mediators Judges Magistrates Arbitrators Adjudicators of building and allied disputes Evaluators in early neutral evaluation Experts giving a determinative view Mediators 3.2 Mediator Codes of Conduct 3.3 Breach of a mediator’s obligations 3.4 Compelling a mediator to give evidence 3.5 Mediator compellability by external legal authority 3.6 Mediator immunity in the US and Australia 4 Mediation and the Civil Procedure Rules 1998 4.1 The path to the CPR 4.2 The Civil Procedure Rules 1998 (the CPR) 4.3 The overriding objective and active case management 4.4 Pre-action conduct and the protocols Pre-action conduct The Pre-action Protocols Pre-action offers to settle 4.5 Stays for ADR and settlement at directions stage: the multi-track and fast-track 4.6 Case management and mediation 4.7 The specialist jurisdictions and Court Guides 4.8 Small claims track cases 4.9 Part 36 offers and settlement 4.10 Costs and the CPR 4.11 The Jackson reports and the Civil Procedure (Amendment) Rules 2013 4.12 An ADR jurisprudence 5 The courts and ADR orders 5.1 Mediation as a necessarily voluntary process? 5.2 The Commercial Court ADR order ‘Good faith’ Stay of proceedings Choice of mediator and mediation machinery Costs of seeking an ADR order Non-compliance with an ADR order 5.3 The effect of the CPR on Commercial Court ADR orders Halsey v Milton Keynes General NHS Trust and the status of ADR Orders 5.4 Current ADR orders and forms of judicial encouragement 5.5 The effect of encouraging ADR in the Pre-action Protocols 5.6 Compelling use of mediation: the real litigation world 6 Costs sanctions for refusing to mediate 1: the journey towards Halsey v Milton Keynes NHS Trust 6.1 The basis for sanctioning unreasonable conduct 6.2 Early developments in post-CPR case law 6.3 The landmark case of Dunnett v Railtrack 6.4 Other cases where sanctions were imposed 6.5 Cases where sanctions were not imposed on a refusing party 6.6 Halsey v Milton Keynes General NHS Trust and inter-party offers to mediate 6.7 The Halsey factors in detail 6.8 Steel v Joy and Halliday: a first case study on applying the Halsey factors 7 Costs sanctions for refusing to mediate 2: the impact of Halsey 7.1 Cases where a sanction was not imposed for refusing to mediate 7.2 When neither party tries to mediate 7.3 Cases where a sanction was imposed (or a non-standard costs order was made) 7.4 Other post-Halsey cases on costs sanctions for failure to mediate 7.5 A summary on costs sanctions 8 Contracting in advance to use ADR 8.1 What is a ‘dispute resolution clause’? 8.2 What do dispute resolution clauses aim to achieve? 8.3 Enforceability of dispute resolution clauses 8.4 The position under English law Are agreements to negotiate unenforceable? Courts can require compliance with certain procedures as a condition precedent to the commencement of litigation or arbitration proceedings Is mediation equivalent to negotiation, such that the law regarding agreements to negotiate applies equally to mediation? The practicality of enforcement 8.5 Types of ADR clause 8.6 Considerations as to ADR clauses Length and detail Content Tiered or stepped clauses 8.7 Areas of relevance 9 Mediation privilege and without prejudice privilege 9.1 Evidential privilege for all settlement discussions 9.2 The current legal status of ‘settlement discussions’ generally 9.3 Exceptions to non-admissibility of ‘without prejudice’ communication 9.4 To whom does ‘without prejudice’ privilege belong? 9.5 Can parties contract to exclude the exceptions to ‘without prejudice’ privilege? 9.6 The special characteristics of mediation 9.7 Does a discrete ‘mediation privilege’ already exist? 10 Mediation and confidentiality 10.1 An implied right to confidentiality? 10.2 Confidentiality created by the mediation agreement 10.3 Practical considerations for mediation confidentiality 10.4 ‘Shared information’ and ‘mediator secrets’ The nature of ‘shared information’ at a mediation The adequacy of without prejudice privilege for ‘shared information’ ‘Mediator secrets’ 10.5 Confidentiality and other third parties 10.6 Confidentiality, privilege and the Uniform Mediation Act in the US 10.7 The need for signed writing for binding settlement and its effect on confidentiality 10.8 Procedural management of disclosure of mediation content 10.9 Conclusions and problems 11 The impact of European law on mediation in England and Wales 11.1 The European Convention on Human Rights 11.2 The EU Mediation Directive 11.3 Implementation of the EU Mediation Directive in England and Wales Article 6: Enforcement of mediated settlements Article 8: suspension of limitation periods Article 7: confidentiality and mediator compellability 11.4 The ADR Consumer Directive 11.5 The EU Code of Conduct for Mediators 11.6 The Report of the European Law Institute and the European Network of Councils for the Judiciary 12 Mediation and litigation costs 12.1 Costs: some definitions 12.2 The basis for litigation costs awards under the CPR 12.3 Transferring the potential costs burden in any case: CPR Part 36 12.4 Qualified one way costs shifting in injury claims 12.5 The impact of Part 36 and QOCS on mediations 12.6 The status of the ‘costs of the mediation’ and ‘mediation fees’ 12.7 Costs of pre-issue and post-issue mediations 12.8 Practical considerations for mediators on costs issues 13 Litigation funding and mediation 13.1 Normal funding 13.2 Legal Aid funding 13.3 Legal expenses insurance (‘Before the event’ or BTE) 13.4 Conditional fee agreements (CFAs) and ‘After the event’ (ATE) insurance 13.5 Damages-based agreements and contingency fee funding 13.6 Third party funding 13.7 Wasted costs orders 13.8 Funding problems arising in mediations 14 The future of mediation within the English civil justice system 14.1 Judge-driven reform: the Woolf and Jackson reports 14.2 Judge-driven reform: the Briggs reports and online dispute resolution 14.3 Spontaneous developments in mediation use 14.4 A summary of the landscape prior to possible further reform 14.5 The Civil Justice Council Working Group reports 14.6 Mediation law – should there be a Mediation Act in England and Wales? 14.7 In conclusion Appendices 1 CEDR Model Mediation Agreement, 2018 Edition 2 CEDR Model Mediation Procedure, 2018 Edition 3 CEDR Model Settlement Agreement, 2018 Edition 4 CEDR Model Tomlin Order, 2018 Edition 5 CEDR Solve Code of Conduct for Third Party Neutrals, 2018 Edition 6 European Code of Conduct for Mediators 7 Recommended further reading 8 List of useful websites Index