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03 - Mediation Flashcards

1
Q

Mediation Styles

A

Facilitative

Evaluative

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2
Q

Facilitative

WHAT

A 
Focus = Interests; Needs; NO Opinion
Mediator = Explore (Options); Formulate (DOC)
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3
Q

Evaluative

WHAT

A 
Focus = Legal Merits; Opinion
Mediator = Assessment
NOT = Determination; Binding
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4
Q

Evaluative

Requirements MUST

A

Joint Request

Agreement = Both Parties; Mediator

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5
Q

Lawyer Preparation

Considerations

A 
Objectives
Analysis
Evaluation
Costs Review
Arguments
Value of Trial
Clarification
Stage of Proceedings
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6
Q

Mediation Preparation

Considerations

A 
Mediation Agreement
Pre-mediation Meeting
Documents
Attendees
Multi Party Dispute
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7
Q

Mediation Agreement

WHAT

A

Enforceable Contract = Parties; Mediator

Signed

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8
Q

Mediation Agreement

Clauses

A 
Parties
Mediator
Timetable
Venue
Procedure
Issues
Information = Without Prejudice
Documents
Authority
Settlement = Non Binding
Costs
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9
Q

Mediation Agreement

Authority TYPES

A

Subject to Authorisation

Direct = Disclose; Figures; Negotiation; Settlement

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10
Q

Venue

Requirements

A

Neutral Location
Three Rooms
Working Hours
Cost

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11
Q

Mediation Preparation

Documents

A

Core Bundle

Confidential Bundle

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12
Q

Core Bundle

Contents

A 
Position Statement
Supporting Documents
Correspondence
Case Management Orders
Chronology
Dramatis Personae
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13
Q

Supporting Documents

WHAT

A

Contract
Witness Statement
Expert Report

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14
Q

Confidential Bundle

Contents

A

Objectives
Legal Opinion
Offers AND Concessions

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15
Q

Position Statements

Purpose

A

Informal Document

Brief = Mediator; Other Party

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16
Q

Position Statements

Contents

A 
Without Prejudice
Parties
Background
Procedural History
Matters = Agreed; Disputed
Issues = Legal; Factual
Evaluation = Evidence; Strength; Weakness
Statement = Remedy; Reason
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17
Q

Position Statements

WHEN Required

A

Agreement

14 days < Mediation

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18
Q

Mediation Preparation

Attendees

A 
Client
Representative
Lawyer
Witness of Fact
Expert
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19
Q

Attendees

Expert WHEN

A

Technical

Individual OR Joint

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20
Q

Multi Party Dispute

Factors

A

Number = Sub-group; Categories
Management = Information; Time
Confidentiality
Funding

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21
Q

Multi Party Dispute

MUST

A

Identify Groups
Timetable AND Order of Issues
Disclosure

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22
Q

Mediation Stages

Four

A
  1. Opening
  2. Exploration
  3. Negotiation
  4. Closing OR Settlement
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23
Q

Opening Stage

Topics

A 
Mediator Introduction
Settlement
Opening Statements
Witness AND Expert
Mediator Closing
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24
Q

Mediator Introduction

Contents

A

Profession
Experience
Role = Neutral; F or E
Information = Confidential; Without Prejudice

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25
Mediator Introduction | Settlement
Authority Voluntary Non Binding
26
Opening Statements | Contents
Refer = Position Statement
27
Witness AND Expert | WHAT
Summary of Evidence Questions = Mediator; Lawyer NOT XIC or XX
28
Mediator Closing | Contents
Summary = Matters; Issues; Evaluation; Remedies | Next Stages = Exploration; Negotiation
29
Exploration Stage | Purpose Closed Meetings
``` Analysis = Issues2 Evaluation = Evidence; Figures; Legal Merits; Success Consideration = Arguments; Position; Proposals ```
30
Exploration Stage | Purpose Open Meetings
Examine NEW Issues | Exchange = Information
31
Closed Meetings | Mediator Role
Probe Issues Reality Check Settlement Options = Creative; Court NOT Order
32
Negotiation Stage | Caucuses STEPS
Order = List of Issues Propose (DOC) Consider (DOC)
33
Negotiation | Mediator Role
Shuttle Diplomat OR Broker Communicate = Offers; Concessions Reframe = Demands
34
Negotiation | Deadlock - Mediator Role
Re-assess = Case Re-consider = Arguments; Position; Proposals Evaluative Opinion
35
Negotiation | Deadlock - Options
Adjourn Alternative = Expert Determination Litigation
36
Closing Stage | Settlement - Mediator Role
Draft = Memorandum of Agreed Terms Record = Agreed Issues; Settlement MUST Signed
37
Closing Stage | NO Settlement - Mediator Role
``` Statement = Adjourned OR Concluded Record = Reasons; Agreed Issues; Suggestions ```
38
Mediator | Selection Method
ADR Provider Direct Recommendation = Institute; Trade
39
Mediator | Selection Factors
``` Mediation Style = F or E Neutral Expertise = Profession Experience Accreditation Cost ```
40
Mediator | Accreditation Benefits
Code of Conduct Complaints Procedure Training Indemnity Insurance
41
Mediator Role
Neutral Structure Process Assist Presentation Intermediary
42
Mediator | Intermediary
Defuse Conflict Reframe = Demands Communicate = Offers; Concessions Assist Evaluation = Strength; Weakness
43
Mediator | Role Function
Agreement | NOT Determination
44
Mediator | Claim Against WHEN
Breach Duty Reasonable Care AND Skill Improper Conduct
45
Mediator | Claim Result
Sue for Damages Discipline ARD Provider NOTE Exclusion Clause
46
Advocate Role
Advocate Advice Assist Mediator Drafting
47
Advocate Role | Advocacy
Opening Statement
48
Advocate Role | Style
Non Adversarial | Purpose = Settlement; NOT Win
49
Advocate Role | Advisory
Manage Expectations Understands = Procedure; Agreement; Settlement Legal Position = Analysis; Evaluation Strategy = DOC
50
Advocate Role | WITH Mediator
``` Persuade = Strength; Weakness Assist = DOC ```
51
Advocate Role | Drafting
Settlement = Draft Agreement | NO Settlement = Reasons; Agreed Issues; Suggestions
52
Confidentiality | Protected Information
Disclosed Information Mediation Process NOT Mediation Occurred
53
Confidentiality | NOT Protected
Enforce Binding Agreement = Terms; Settlement Concluded
54
Confidentiality | Enforcement
Court Order = Injunction
55
International Mediation | Advantages
National Experts | Neutral Jurisdiction
56
International Mediation | Disadvantages
Cultural Differences Time Cost
57
EU Directive in UK | Implementation
Cross-Border Mediation (EU Directive) Regulations 2011
58
EU Directive | Provisions
``` Mediation Recourse Mediator Training Confidential Enforceable Limitation Period NOT Expire ```
59
International Mediation | Enforcement CPR
CPR 78.24 | Mediation Settlement Enforcement Order (MSEO)
60
International Mediation | Enforcement Procedure
Part 23 Procedure = Proceedings Issued | Part 8 Procedure = Proceedings NOT Issued
61
International Mediation | Enforcement Requirements
Settlement Agreement Consent ALL Parties Currency Conversion Certificate
62
International Mediation | Failure Consent
Judgement | Court Order = Award Enforceable
63
International Mediation | Enforcement Result
NO Hearing | Court Order = Award Enforceable
64
International Mediation | Limitation Act 1980
Suspend Limitation Period IF Expired = Extends Period 8 weeks NO Limit of Extensions
65
Mediation | Required Regulation
Independent Body | Professional Standards
66
Mediation | Independent Body
Code of Conduct | Complaint Procedure
67
Mediation | Professional Standards
Uniformity = Training; Accreditation | Indemnity Insurance
68
Civil Mediation Council (CMC) | WHO
Independent Body Recognised Authority Represent = Providers Promote = ADR; Standards; Best Practice
69
Civil Mediation Council (CMC) | Schemes
Provider Accreditation Scheme | Individual Membership Registration Scheme
70
Provider Accreditation Scheme | Accreditation
Met Standards Met Requirements Insurance Paid Fees
71
Provider Accreditation Scheme | Requirements
EU Model Code of Conduct Complaints Procedure 6 Member Panel
72
Provider Accreditation Scheme | Member Panel Requirements
``` Assessed Training Course 12 months Experience Feedback Logbook CPD = Professional Development Indemnity Insurance ```
73
Individual Membership Registration Scheme | WHAT
Registration | NOT Accreditation
74
Individual Membership Registration Scheme | Conditions
Accredited Training Course = 40 hrs CPD = Professional Development Indemnity Insurance
75
Conciliation | WHAT
Assisted Negotiation AND Settlement | TYPES = Employment; Family
76
Conciliation | Employment WHO
ACAS (Advisory, Conciliation and Arbitration Service)
77
Conciliation | Employment STEPS
``` 1. ACAS Mandatory Contact Advice Limitation Period Suspended Agreement 2. Failure a. Early Conciliation Certificate b. Tribunal Hearing ```
78
Conciliation | Family WHO
CAFCASS (Child AND Family Court AND Support Service)
79
Conciliation | Family WHEN
Dispute Over Children Contact Residence
80
Conciliation | Family STEPS
1. First Hearing Dispute Resolution Appointment a. Agreement b. Mediation 2. Failure a. Court Hearing
81
Judicial Mediation Schemes | WHAT
Court Mediation | Mediator = Judge
82
Judicial Mediation Schemes | TYPES
Employment Family Technology AND Construction
83
Judicial Mediation Schemes | Employment STEPS
1. CMD (Case Management Discussion) a. Selection b. Parties Consent 2. Judicial Mediation = Independent 3. Failure a. Tribunal Hearing
84
Judicial Mediation Schemes | Family STEPS
1. Mandatory Meeting a. MIAM (Mediation Information Assessment Meeting) b. Agreement 2. Proceedings Issued 3. First Hearing Dispute Resolution Appointment a. Agreement b. Judicial Mediation 4. Failure a. Court Hearing
85
Judicial Mediation Schemes | Technology AND Construction STEPS
1. Judicial Mediation | 2. Court Hearing
86
Judicial Mediation Schemes | Advantage
Judge = Legal Expert Written Assessment Confidential Cost
87
Judicial Mediation Schemes | Disadvantage
``` Judge = Evaluative NOT Facilitative Judge = NOT Neutral; MAY Influence ```
88
Court Mediation Schemes | WHAT
Court Mediation | Mediator = Independent (Court Employee; ADR Provider)
89
Court Mediation Schemes | TYPES
Small Claims Court of Appeal Civil Mediation Online Directory
90
Court Mediation Schemes | Advantages
``` Mediator = Independent Time = Arranged < > 2 weeks Cost = Fixed AND Low Fee ```
91
Small Claims Scheme | WHAT Claims
Claim Value = < £10k NOT RTA NOT PI NOT Housing
92
Small Claims Scheme | STEPS
Referral IF Agree Mediation = Free; Telephone Mediator = HMCTS Employee
93
Small Claims Scheme | IF Success
Proceedings AUTO Stayed | Permission = Discontinue; Dismiss; Judgement
94
Small Claims Scheme | IF NO Success
Proceedings Continued Directions Questionnaire Hearing < 4 weeks
95
Court of Appeal Scheme | STEPS
``` Referral = Parties OR Court Mediation = 3 months > Referral ```
96
Court of Appeal Scheme | Mediator WHO
Selected from CAMS Panel ‘Court of Appeal Mediation Service’ Training Provided
97
Court of Appeal Scheme | Cost
£850+VAT per Party | PLUS Venue
98
Civil Mediation Online Directory | Operator
Ministry of Justice
99
Civil Mediation Online Directory | Purpose
Low Cost Mediation IF Coupon
100
Civil Mediation Online Directory | Cost
``` £50+VAT = < £5k £300+VAT = £5-15k £450+VAT = £15-50k Negotiation = £50k+ ```

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