Mediation Flashcards
(9 cards)
What is the role of a mediator in a commercial mediation?
A. To advise parties on their legal position and decide the dispute
B. To facilitate negotiation between parties without imposing a binding decision
C. To prepare and sign the final settlement contract
D. To represent the party who initiated the mediation
B. To facilitate negotiation between parties without imposing a binding decision
Explanation: A mediator is a neutral facilitator, helping the parties reach their own resolution. They do not impose decisions.
Which of the following is true about the confidentiality of mediation?
A. It can be freely disclosed by the mediator if both parties agree
B. The court may access the content of the mediation at any stage
C. It applies to discussions but not to the fact that mediation took place
D. It is protected by without prejudice privilege and generally not admissible in court
D. It is protected by without prejudice privilege and generally not admissible in court
Explanation: Mediation discussions are protected under without prejudice privilege and cannot usually be admitted in court.
Two companies engage in mediation after a contract dispute. During the mediation, one party makes a confidential offer. Later, this offer is referred to in court. Is this likely to be allowed?
A. Yes, because all offers in mediation are admissible
B. No, because mediation discussions are protected by without prejudice privilege
C. Yes, but only if both parties agree
D. No, unless the court orders otherwise
B. No, because mediation discussions are protected by without prejudice privilege
Explanation: Confidential discussions in mediation are privileged and cannot be referred to unless privilege is waived by both parties.
Which of the following best describes the outcome of a successful mediation?
A. A mediator issues a final binding ruling
B. The parties agree and sign a settlement agreement
C. The court issues a consent order without parties’ involvement
D. A default judgment is entered against the losing party
B. The parties agree and sign a settlement agreement
Explanation: Mediation ends in a binding settlement only when both parties voluntarily agree and sign terms.
A commercial mediation is held, and parties reach an agreement orally, but the written agreement is never signed. The mediation agreement states that settlement is not binding until signed. What is the legal position?
A. The oral agreement is enforceable if witnessed
B. The oral agreement is binding under contract law
C. The parties are bound because the mediator confirmed the agreement
D. The settlement is not binding unless reduced to writing and signed
D. The settlement is not binding unless reduced to writing and signed
Explanation: If the mediation agreement requires a signed written settlement, oral terms are not enforceable.
Company A includes a mediation clause in a commercial contract. Company B refuses to mediate when a dispute arises. What is the likely impact in court?
A. The court must compel mediation
B. The case will be struck out
C. The court will ignore the clause
D. The court may penalise Company B in costs for unreasonably refusing ADR
D. The court may penalise Company B in costs for unreasonably refusing ADR
Explanation: The court encourages ADR and may impose costs sanctions for unreasonable refusals to mediate.
Which of the following organisations does NOT directly provide commercial mediation services?
A. CEDR
B. ADR Group
C. ICC
D. HMRC
D. HMRC
Explanation: HMRC is the UK tax authority and does not provide mediation services, unlike CEDR, ADR Group, or ICC.
What is the main legal purpose of the mediation agreement?
A. To guarantee the dispute will be resolved
B. To govern the process, confidentiality, and mediator’s role
C. To bind parties to attend court
D. To let the mediator impose a settlement
B. To govern the process, confidentiality, and mediator’s role
Explanation: The mediation agreement sets out the ground rules of the mediation, including confidentiality and scope of the mediator’s role.
During a mediation, both parties begin in the same room and give brief opening remarks. Afterward, they separate into individual rooms, and the mediator shuttles between them. What is this structure called and what is its purpose?
A. Arbitration phase, used to deliver a binding decision after negotiation
B. Evaluation stage, where a mediator provides legal advice to both sides
C. Break-out session model, designed to allow candid private discussions and facilitate settlement
D. Court-facilitated adjudication, where a judge decides issues in chambers
C. Break-out session model, designed to allow candid private discussions and facilitate settlement
Explanation:
This structure is a hallmark of mediation. The joint session allows for opening statements and clarification of issues. The break-out sessions then enable the mediator to move between parties privately, delivering offers and helping explore settlement options confidentially. This approach promotes open dialogue without confrontation.
