top of page
trust-mediation-article-logo.jpg
paul-balen-trust-mediation-article.jpg

More than Mediation – the different types of (Alternative) Dispute Resolution

By Paul Balen

In Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, a strong Court of Appeal led by the Master of the Rolls, Sir Geoffrey Vos, ruled that the court may order parties to consider ‘Alternative to Court’ Dispute Resolution (ADR) in appropriate circumstances. Indeed, Sir Geoffrey had previously indicated that in his view litigation lawyers should see themselves primarily as Dispute Resolution lawyers with court as the last resort, hence dropping the A for Alternative.  Mediation and (A)DR are not synonymous and other Dispute Resolution processes are emerging, effectively creating a Dispute Resolution (DR) toolkit to assist legal litigation.

In April the proposals to amend the CPR by updating the Overriding Objective to promote the use of ADR were published, making it clear that the court must consider whether to encourage parties to engage in ADR and can order them to do so.   Furthermore, likely changes to Part 44 would see a failure to comply with an order for ADR or unreasonable failure to participate in ADR be expressly defined as relevant conduct issues when considering what costs order to make and in fact in the very recent case of Northamber PLC v Genee World Ltd & Ors (Rev1) [2024] EWCA Civ 428, the defendant failed to respond to the offer to mediate and the party suffered a costs penalty.

This therefore is the right time for litigators to expand their skill set beyond their litigation prowess and develop a nuanced understanding of DR processes, to assist them, and enhance how they deal with claims and the outcomes for both the paying and receiving parties. 

 

An American attorney wrote, back in 1995:

“An increasing (amount) of legal work is available only to lawyers skilled in ADR. Most lawyers, in fact, find there is much to learn about ADR, most important, how to select appropriate cases and how to develop processes suitable to each case.”  

 

That was true in the USA then and it applies here today. 

 

This article aims to assist solicitors and barristers in England and Wales in selecting the best DR method for a particular case.   We explore the distinct characteristics of each DR solution including, Facilitative Mediation, Evaluative Mediation, Neutral Evaluation, Mediation with Neutral Evaluation, Arbitration, and Mediation with Arbitration ("Med-Arb"). 

 

Facilitative Mediation

As mentioned above, this is the most commonly used form of DR used in this country. The mediator, a trained, independent neutral, works with the parties, communicates with them and provides a structured environment for their negotiations which, in personal injury and clinical negligence claims, reach a settlement on the day or shortly afterwards. The mediator does not provide legal advice or evaluate the merits of the case but rather focuses on facilitating the negotiation process. The mediator does not impose her or his views but will not be averse to being proactive and offering a generous dose of reality, for example, where negotiations stall if there are unrealistic expectations of the client or the legal team. The mediator will make it clear at the outset that responsibility for the outcome will rest with the parties and any settlement will be down to them. Facilitative mediation is suitable for cases where the parties are willing to engage in a collaborative process and have a genuine desire to reach a settlement. Trust Mediation usually see a settlement rate in the region of 80% in clinical negligence claims and 90% in personal injury claims.

 

Evaluative Mediation

Evaluative mediation is a hybrid form of mediation in which the mediator, in addition to facilitating the negotiation process, also provides an evaluation of the case.  This process varies from facilitative mediation in that the mediator will, in addition to working with the parties and facilitating negotiations also, if all parties consent, offer a non-binding evaluation of the claim. The evaluation will take into account all that the mediator has seen as well as his or her view of the respective strengths and weaknesses. The evaluation may be expressed as an opinion of the likely outcome at trial or a view about the sum which the claims is likely to settle for in light of the preceding negotiations. Evaluative mediation is suitable where the parties want a more directive and structured approach and want the benefit of the mediator's authoritative evaluation. 

 

Neutral Evaluation

This process is also referred to as Early Neutral Evaluation (which can be a misnomer where the neutral evaluation takes place sometime after the claims has been made.)  Neutral evaluation is a process in which a neutral evaluator provides a non-binding opinion on the merits of the case. The evaluator is typically a retired judge or an experienced DR practitioner. Neutral evaluation is suitable for cases where the parties want an expert opinion on the likely outcome of the case if it was to proceed to trial.

 

Mediation with Neutral Evaluation

Mediation with neutral evaluation combines the elements of facilitative mediation and neutral evaluation. In this process, the mediator first facilitates a negotiation between the parties and, if the parties are unable to reach a settlement, the mediator provides a non-binding evaluation of the case. Mediation with neutral evaluation is suitable for cases where the parties want the benefits of both mediation and an expert neutral evaluation.

 

Arbitration

Arbitration is a process in which a neutral arbitrator hears evidence from both parties and makes a binding decision on the case. The arbitrator's decision is final and binding on the parties and is typically enforceable in court. Arbitration is suitable for cases where the parties want a final and binding resolution of their dispute and are willing to give up their right to appeal to the courts.

 

Mediation with Arbitration (Med-Arb)

Med-Arb is a hybrid form of DR that combines the elements of mediation and arbitration. In this process, the parties first engage collaboratively in mediation and, if they are unable to reach a settlement, the mediator then acts as the arbitrator and makes a final and binding decision on the case. Med-Arb is suitable for cases where the parties want the benefits of both mediation and the knowledge that a final decision can be made by the arbitrator if the negotiations are unsuccessful.

 

In conclusion, selecting the appropriate DR method requires careful consideration of the nature of the dispute, the parties' preferences, and the desired outcomes. Whether opting for facilitative mediation to foster constructive dialogue or arbitration for a binding resolution, solicitors and barristers must weigh the merits of each approach in light of their clients' needs. By understanding the nuances of the various Dispute Resolution techniques, legal practitioners can navigate personal injury and clinical negligence claims with confidence, ultimately facilitating efficient and effective resolution for their clients.

 

Everyone dealing with personal injury and clinical negligence claims in this jurisdiction has now become accustomed to the turbulence of constant change, notwithstanding the recent civil justice policy and the extension of fixed recoverable costs.  DR providers also face the same challenge and recognising the need to diversify, Trust Mediation, has launched a new brand called “TM+” denoting their new range of DR services, including those provided by our sister organisation Trust Arbitration.    

For more information on the range of Dispute Resolution services that Trust Mediation can provide click here

 

 

[Foot note: John R. Harding, Jr., “Trial Lawyer’s Guide”.]

bottom of page