ALTERNATIVE DISPUTE RESOLUTION ADR .docx

ADR

1. ALTERNATIVE DISPUTE RESOLUTION (CORE)
ADR continues to be turned to by many in response to the problems of the
formal justice system, especially its problems of expense and delay. Discuss the
major purpose of ADR
2.0 THE HISTORY OF THE ADR MOVEMENT AND ITS PLACE IN TRADITIONAL
LITIGATION
2.1 Relationship between ADR and the formal justice system
Reading Materials:
1. Schwartz, David S., "Mandatory Arbitration and Fairness." 84 Notre Dame L. Rev. 1247 (April
19, 2010)
2. Totaro, Gianna., "Avoid court at all costs" The Australian Financial Review Nov. 14 2008. (April
19, 2010)
By embracing the advantages of ADR however, there is a danger that the
participants may lose some of the safeguards available to them under the formal
justice system. Discuss
3.0 FAIRNESS, JUSTICE AND ADR
a. Identity and ADR
b. Fairness and ADR
c. Public Accountability
d. Rule against Bias
Identities have a powerful effect on the way people react to disputes, the choices
they make about how to handle them, and their chances of resolving them fairly
and in accommodation of their needs. Discuss
4.0 THE USE AND APPLICATION OF
NEGOTIATION
a. Salient features of Negotiation
Reading Materials:
1. Saner, Raymond. The Expert Negotiator, The Netherlands: Kluwer Law International, 2000
(Page 40) 3.
2. Churchman, David. 1993. Negotiation Tactics. Maryland: University Press of America. Pg 13. 4.
3. Shell, R.G. (2006). Bargaining for advantage. New York, NY: Penguin Books
Receptive negotiators tend to appear relaxed with their hands open and palms
visibly displayed. Discuss the various tactics of negotiation.
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2. 5.0 INTRODUCTION TO MEDIATION
Legislation:
Civil Procedure Rules of Uganda . Order 12
a. Direct and indirect consultation
b. Mediation skills and structure
Tapoohi v Lewenberg [2003] VSC 379 As of 2008 this was the only case in Australia that set a
precedent for mediators' liability.
Mediation recognized that in addition to the fact of reaching a settlement, party
satisfaction and mediator competence could be relevant. Discuss
6.0 THE GENERAL IMPACT OF GENDER ON ADR
a. Bias
b. Discrimination
c. Cultural issues
Reading Materials:
1. Gwynn Davis, ‘Partisans and Mediators: The Resolution of Divorce Disputes’, Clarendon Press,
Oxford, 1988, pages 64-71.
2. Deborah M Kolb and Gloria G Colidge, ‘Her Place at the Table: A Consideration of Gender
Issues in Negotiation’, ‘Program of Negotiation’, Working
Paper Series, 88-5, October 1988, Harvard Law School.
3. -See also, Kathy Mack, ‘ADR and Access to Justice for Women’, (1995) Adelaide Law Review,
page 123
Gender affects us generally because it defines or has a profound effect upon
social roles. Our gender is something we are born with. Its implications are
also imposed upon us to a large degree, by the society in which we happen to
live. Discuss
To what extent are Ugandan Courts employing mediation in Criminal cases?
8.1 What are the constitutional objections to court-ordered mediation?
8. 2 Are current measures sufficient to encourage parties to mediate?
Legislation:
The Constitution of the Republic of Uganda
9.0 ARBITRATION
a. Advantages and disadvantages
b. Arbitrability
Legislation:
1. Arbitration and Conciliation Act Cap. 5
2. The Geneva Protocol of 1923
3. The Geneva Convention of 1927 [1] The European Convention of 1961
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3. 4. The Washington Convention of 1965 (governing settlement of international investment disputes)
5. The UNCITRAL Model Law (providing a model for a national law of arbitration)
6. The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration) Cases:
i. The Alabama Claims Award of 1872,23
ii. The Behring Sea Arbitration (1893),24
iii. Bayeti Farm Enterprises Ltd. & Others V Transition Grant Services CAD/ARB/4 2009
iv. East African Development Bank V Zziwa Horticultural Exporters Ltd. HC Misc Application
1 1048 of 2000.
An award issued to a contracting state can generally be freely enforced in any
other contracting state, only subject to certain, limited defenses. Discuss
10.0 ARBITRATION AGREEMENT
Cases:
i. The British Guiana arbitration (1897)25 and
ii. The North Atlantic Coast Fisheries arbitration (1910).26
iii. Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614 (1985)
iv. Swiss Bank Corporation v Novrissiysk Shipping [1995] 1 Lloyd's Rep 202 13. v. Hobbs Padgett
& Co v J C Kirkland (1969) 113 SJ 832 14.
vi. Mangistaumunaigaz Oil Production v United Kingdom World Trade [1995] 1 Lloyd's Rep 617
vii. Norske Atlas Insurance Co v London General Insurance Co (1927) 28 Lloyds List Rep 104 16.
viii. Deutsche Schachtbau v R'As al-Khaimah National Oil Co [1990] 1 AC 295 17.
ix. Under English law see Heyman v Darwins Ltd
Article V of the New York Convention provides an exhaustive list of grounds on
which enforcement can be challenged. Name and explain.
12.0 ARBITRATION AWARDS
i. Air Transport Services Agreement Arbitration (United States v. France), Award 1963 and
Interpretative Decision 1964.27
ii. Italy–United States Air Transport Arbitration, Award (Advisory Opinion), 1965.28
iii. Argentina–Chile Frontier (Palena) Case, 1966.29
iv. Beagle Channel Arbitration, Award and Decision,
Saner, Raymond. The Expert Negotiator, The Netherlands: Kluwer Law International, 2000 (Page
40) 3.
2. Churchman, David. 1993. Negotiation Tactics. Maryland: University Press of America. Pg 13. 4.
3. Shell, R.G. (2006). Bargaining for advantage. New York, NY: Penguin Books.
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4. THE STATE PROMOTES THE USE OF ALTERNATIVE
DISPUTE RESOLUTION (ADR) IN THEIR LEGAL
SYSTEM. STATE THE POSSIBLE REASON.
1. INTRODUCTION:
                               Alternative dispute resolution (ADR) refers to a way to make any solution
between parties involving in any disputes without involvement of judicial activities through using
its various forms. There are several forms that are mainly used to make the solution between two
parties without going through the regular court process are known as ADR. Alternative dispute
resolution process historically developed in North American countries like America, Canada etc.
The European countries, African countries, Middle East and the Asian countries are using the
alternative dispute resolution as the alternative way to resolve the problems. International
associations like Association of International Arbitration have been used Alternative dispute
resolution to resolve problems between international parties.
                                 During the late 1980s and early 1990s a lot of people become increasingly
concerned that the traditional method for solving the problem in USA through conventional
litigation has become too much expensive, too slow and too problematic.(1) Later this thoughts led
to use the alternative ways to resolve the problems which collectively known as Alternative dispute
resolution.
                                In early 2000s, the uses of Alternative dispute resolution increases day by day
and the parties and lawyers realized that these techniques can help them to resolve issues quickly,
cheaply and more privately than the litigation process.(4) Now a day’s most of the people prefer
ADR because this is more focused on problem solving and always based on an adversarial model.
2. Definition of alternative dispute resolution:
                            Alternative Dispute Resolution processes are alternative methods of helping
people resolve legal problems before going to court. Alternative Dispute Resolution (“ADR”) refers
to any means of settling disputes outside of the courtroom. ADR typically includes early neutral
evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising
costs of litigation, and time delays continue to plague litigants, more states have begun
experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.
ADR involves an independent third person, called a neutral who tries to help resolve or narrow the
areas of conflict.
                           Alternative dispute resolution process includes dispute resolution process and
techniques that work as a means of disagreeing parties to come into an agreement. Alternative
dispute resolution basically is an alternative way than formal court hearing or litigation. It is also
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5. known as external dispute resolution process in some countries. There are several ways of resolving
issues rather than litigation, this ways collectively known as alternative dispute resolution. Now it
has gained huge popularity among the common people and also among the people involving legal
activities.
3. Alternative Dispute Resolution in Bangladesh:
                         Alternative dispute resolution is not new in Bangladesh and it was existed under
previous arbitration act, 1940. The Arbitration Act, 2001 has been enacted to accommodate the
Harmonization mandate of UNCITRAL model. Bangladesh legal system the traditional legal
system known as code of civil procedure 1908 has also been amended and section 89A and 89B has
introduced which provides the opportunities to arrange alternative dispute outside the court. Due to
slow judicial process in Bangladesh there extreme want for alternative dispute resolution process in
our country Bangladesh.
4. ADR in other country:
                         During 18
th
 and 19
th
 century Arbitration and mediation was widely used in America
for setting commercial disputes. Arbitration was first promoted by the Federal Government of
America by passing the commerce act in 1887.(9) In 20
th
 century the full arbitration process is
passed. In Canada alternative dispute resolution used as meditation to solve family disputes. In mid
1980s the meditation started to use for civil and non family law. Thus alternative resolution process
developed in North American countries.
                      During the Renaissance period the Catholic Popes were practiced arbitration by acting
as arbitrators to resolve the conflict between European countries like Italy, Greece etc. in ancient
period the Roman emperors used meditation in Italy. Greek philosopher Aristotle and Cicero also
believed in arbitration as an alternative way of remove dispute to the court. The practice of
meditation in Great Britain established from united state.(1) Practice of negotiation, meditation and
arbitration was practiced in ancient and medieval period in Spain, Belgium, France and other
European country. Thus alternative dispute resolution is formed and developed in European
countries.
                       The existence of alternative dispute resolution is also found in Middle East and North
African countries like Saudi Arabia, Iran, Iraq , Morocco from the ancient and medieval period
during the period of Prophets and Caliphs through the practice of arbitration and meditation.
                     In Indian sub continent like India, Bangladesh and Pakistan has a long history of
Alternative dispute resolution. In ancient period the use of meditation and arbitration was
maintained during the rule of Murya, Pala and sena period. In medieval period the mediation and
arbitration has also practiced by Mughol emperor. In colonial period the British rulers of Indian sub
continent used arbitration and conciliation to resolve the dispute. Now in independent India,
Bangladesh and Pakistan used alternative dispute resolution to remove conflict between parties.
Thus alternative dispute resolution developed in Indian sub continent.
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6. 5. Types of Alternative Dispute Resolution:
                    The alternative dispute resolution processes are classified into four types.
Arbitration.
Conciliation.
Meditation.
Negotiation.
5.1. Arbitration:
                           The process of arbitration process exists if valid arbitration agreement between the
parties prior to the emergence of the dispute. Such as agreement is in written format. The
agreement, regarding which the dispute exists, must either contain an arbitration clause or must
refer to a separate document signed by the parties containing the arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not
cooperate, the party can run sole arbitration if the valid arbitration is exists. There are only two
grounds upon the party can challenge to the arbitrator. A sole arbitrator or panel arbitrator
appointed constitutes the arbitration tribunal. Once the period of filling an appeal is over or if the
appeal is rejected, the award is binding on the parties and considered as  a decrease of the court.
5.2. Conciliation:
                           Conciliation is less formal form than arbitration. This does not need any existence
of prior agreement. Any party can request other party to appoint a conciliator.  One conciliator is
preferred but two or three is also acceptable. In case of multiple conciliators, all must act jointly. If
one party rejected the conciliation then there will be no conciliation. Parties may submit statements
to the conciliator describing the forms of disputes and the nature of issues. Each party sends the
copy of statements to other. Conciliator can ask for further information, statements. Conciliator can
ask the parties to communicate between each other orally or written. Parties can send the suggestion
for the settlement of the dispute. When the terms of settlement exists then the conciliator drawn up
the settlement and send it to the both parties. If the both parties signed the settlement paper then the
it shall be final and binding on both.
5.3. Meditation:
                         Meditation is used in law, an alternative way of dispute resolution between two or
more parties. The third party a mediator assists the parties to negotiate their statements. In some
cases the mediator can express what is fair and what should be reasonable. Meditation has a
dynamic, timetable and structure which ordinary negotiation lacks. The process is private and
confidential. The presence of mediator is a key distinguish feature of that process. There may be no
obligation for meditation. But in sometimes if the parties signed in the settlement agreement then it
binds on both the party. In meditation the mediators uses various techniques to improve or to make
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7. an agreement between the parties. It depends on the mediator’s skill and training. The mediators
must be wholly impartial. The process meditation can be used to solve different disputes like
commercial, diplomatic, legal, family matters etc. a third party may contract and mediate between
union and corporation. When labor unions go for strike, dispute occurs then a third party may settle
an agreement between the union and corporation.
5.4. Negotiation:
                       Negotiation is dialogue between two parties or more in order to solve any dispute or
to resolve point of differences or gain advantage outcome of dialogue.(6) Negotiation is bargaining
between two or more parties for resolving any arguments for collective advantage. Negotiation is a
process where each party tries to gain an advantage for themselves at the end of the process.(8)
Negotiation is process of compromise.
6. Possible reasons for using ADR:
                 Sometimes people become involved in disputes which, although very important and
worrying to those concerned, are better resolved outside the comparatively expensive court system.
Some disputes do not have a legal solution, while others may be made worse by court action. There
are a number of advantages of Alternative Dispute Resolution in general over litigation: The
possible reasons for which the state uses alternative dispute resolution to solve the dispute are given
below:
6.1. Cost:
         One of the largest reasons parties choose to resolve their disputes outside of the courts is cost.
Alternative dispute resolution usually costs much less than litigation, allowing smaller financial
disputes a financially viable way to be settled.
6.2. Speed:
        ADR can be scheduled by the parties and the panelist as soon as they are able to meet.
Compared to the court process, where waits of 2-3 years are normal, dispute resolution is as fast as
the parties want it to be. Trials are lengthy, without exception. In many jurisdictions it could take
years before you even get to begin arguing your case before a judge, much less get a verdict. There
are better things you could be doing with your time.
6.3. Control:
              The parties control some of the process; selecting what method of ADR they want to
follow, selecting the panelist for their dispute resolution; the length of the process; and, in a
mediations case, even the outcome. Opposed to the court system, where the legal system and the
judge control every aspect, ADR is much more flexible.
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8. 6.4. Confidentiality:
Disputes resolved in court are public and any judgments awarded are also public. Mediation,
arbitration, and mini trials are all conducted in private and in strict confidentiality.
6.5. Experienced Neutral Panelists:
Our panelists are professional mediators and arbitrators with training and expertise in dispute
resolution and insurance. Disputing parties are able to select their panelist from a list of qualified
individuals who are specialized in specific aspects of insurance. In the court system, binding
decisions are made by judges who may lack expertise in insurance practices.
6.6. Cooperative Approaches:
               All ADR services take place in a more informal, less confrontational atmosphere. This is
more conducive to maintaining a positive business relationship between the two parties. With
mediation, specifically, the result is a collaboration between the two parties.
6.7. Flexibility:
            Legal and non legal disputes can be addressed during this process proving it to be more
flexible.  Some may think that is a suitable package in the sense that takes into account fundamental
concerns of the parties and offers remedies not available when at court.
6.8. Parties into good terms:
                    The aim of absolute dispute resolution is to find out a compromise solution which is
satisfactory to both the parties. Court proceedings a winner and a looser.  Using ADR to settle a
dispute means business can remain on good terms and continue to trade with each other once their
dispute is resolved.
                   The advantages and benefits of Absolute dispute resolution is realized when  the dispute
or conflict is successfully resolved and all the participant parties respect and agree with the
outcomes of the procedures.  The failure to compromised decision pinpoints the weakness of ADR
which to be adjusted for attaining fruitful outcome.
7. Conclusion:
             Alternative dispute resolution refers to everything from facilitated settlement negotiation in
which disputants are encouraged directly to negotiate each other prior to some other legal process.
The arbitration process seems like courtroom process. Absolute Dispute resolution has gain
widespread acceptance to both the general public and the people related to law.
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9.                At last we can conclude that, Alternative Dispute Resolution (ADR) is the process of
making resolutions for disputes between two or more parties by avoiding litigation through various
forms. It has been historically developed from ancient period to present period in Europe, North
America, Sub-Saharan African Countries, Middle-East and North African Countries, Australia,
China, Indian-Sub Continent and other regions around the world through the practice of
negotiation, mediation through mediators, arbitration through arbitrators and Conciliation for
resolving disputes between parties without court hearing.
           Now in recent period it has become acceptable to both the common people and people
related to law. Now different state of the world  promotes Alternative dispute resolution in their
legal system for several reasons which are already analyzed in previous. Alternative dispute
resolution overcomes the costly and slow regular judicial process. So it becomes more acceptable.
            The ADR system is much more effective in many cases but it doesn’t provide or gives us a
fair result always. It becomes unfair because of the ruling of powerful people over the lower caste
people. So the system needs to have a change. Because a person who is not guilty always wants a
fair trial whether the other party is powerful or not. This thing is happening all around the world. If
this happens for a long time than people will lose their absolute faith in court an justice. So the
governments need to resolve this issue as quickly as possible.
Bibliography:
1.Totaro, Gianna, “Avoid court at all costs” The Australian Financial Review Nov. 14 2008.
(April 19, 2010). Derived 01-12-2011.
2.Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247
(April 19, 2010)
3.International Institute for Conflict Prevention & Resolution.“Arbitration Appeal
Procedure.”http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/
Default.aspx
4.“What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution
Processes.” American Bar Association. http://www.abanet.org/dispute/draftbrochure.pdf
5.The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past,
Present and Future, (200)
6.Alternative Dispute Resolution , Retrieved December 3, 2011,
from http://www.adviceguide.org.uk/c_alternative_dispute_resolution.pdf)
1.https://www.lawyersnjurists.com/our-services/practice-areas/alternative-dispute-resolution-
adr ; Retrieved on 01-12-2011
1.Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of
National Affairs Books, Washington DC;
 1.     Practice of ADR in Bangladesh; https://www.lawyersnjurists.com/our-services/practice-
areas/alternative-dispute-resolution-adr ; Retrieved on 01-12-2011
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10. 1.10.  Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved
from http://epublications.bond.edu.au/cgi/viewcontent.cgi.
1.Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political,
Social, and Cultural Movement. Jossey-Bass.
1.12.  Global Arbitration Mediation Association, Inc. (2000). HISTORY OF
ALTERNATIVE DISPUTE RESOLUTION. Retrieved December 2, 2011,
from http://www.gama.com/HTML/history.html.
 13.  A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011,
from http://www.fema.gov/doc/library/morethanoneway.doc.
1.Global Arbitration Mediation Association, Inc. (2000). HISTORY OF ALTERNATIVE
DISPUTE RESOLUTION . Retrieved December 2, 2011, from
http://www.gama.com/HTML/history.html.
1.https://www.lawyersnjurists.com/articles-and-assignment/alternative-dispute-resolution-adr-
wide-acceptance-resolve-dispute-due-perceived-advantage/
1.www.lawyersnjurists.com/articles-and-assignment/‘discuss-historical-development-
alternative-dispute-resolution-adr-
1.https://www.lawyersnjurists.com/articles-and-assignment/alternative-dispute-resolution-adr-
methods-comparison-court-litigation-advantages-free-short-comings-explain-2/
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11. [Picture credit: creative commons]Although infrequent, court cases against mediators are
illuminating, helping us avoid being dragged into court ourselves.
Here’s an example
In Tapoohi v Lewenberg & Ors (No 2) [2003] VSC 410, the Supreme Court of Victoria,
Australia, considered it arguable that a mediator owes a duty of care to the disputants.
The mediated dispute
This was litigation between two legally represented sisters over the estate of their
deceased mother. Mrs Tapoohi attended by telephone. The mediator was an experienced
senior counsel and mediator.
Handwritten Terms of Settlement were executed and faxed to Mrs Tapoohi, who faxed
back a signed copy.
The settlement contemplated payment by Mrs Tapoohi of $A1.4 million for certain real
estate and transfer by her of certain shares for $A1.00.
Following the mediation
It later became apparent that the $A1.00 figure had undesirable tax consequences for Mrs
Tapoohi. Her sister refused to change the price, so Mrs Tapoohi commenced fresh court
proceedings seeking to set aside the settlement, saying it was subject to an express oral
term that the parties would seek taxation advice before concluding any settlement.
The claim against her solicitors
Mrs Tapoohi later added a claim against her solicitors that they had advised her to sign
the Terms because they were subject to the express oral term and were not binding upon
her. Alternatively, if the settlement was binding, she had suffered loss and damage due to
the solicitors’ breach of their retainer or negligent advice.
More than two years after bringing the initial proceedings, Mrs Tapoohi discontinued the
second proceedings against her sister and thereafter pursued only her solicitors.
The solicitors’ claim against counsel and the mediator
The solicitors claimed that if the Terms of Settlement were binding, the damage suffered
by Mrs Tapoohi was due to breaches by her barrister and by the mediator of duties they
owed to her in contract and in tort. Hence if the solicitors were liable to pay damages to
her, they were entitled to contribution from the barrister and the mediator.
The mediator applied to strike out the solicitors’ claim
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12. The mediator submitted that the solicitors’ claim had no arguable basis. The solicitors and
the mediator provided sworn affidavits as to what happened at the mediation. The judge
noted that a number of important allegations were vigorously disputed by the mediator,
saying:
“For the purposes of an application such as this I must approach the matter on the
basis that the facts most favourable to the claim will be established. This means
that, in the event of conflict, I must prefer the affidavits filed on behalf of the
solicitors”.
The barrister also sought to strike out the solicitors’ claim but did not pursue that
application.
What happened at the mediation?
In determining whether to strike out the claim against the mediator, the judge examined in
detail the solicitors’ evidence as to the conduct of the mediation, summarised below.
The solicitors for both sisters verbally agreed to appoint the mediator and so informed him.
The mediator then wrote to the parties confirming his nomination and proposing a
preliminary conference, saying:
"I confirm that the aim of the Mediation Conference is to assist the parties in
reaching a settlement of their dispute by the involvement of an impartial mediator. It
is not the role or function of a mediator to impose a settlement on the parties. It is
up to the parties to arrive at their own resolution of the dispute. The purpose of the
mediator is to assist the parties to define the issues, eliminate obstacles to
successful communication, explore settlement alternatives, and generally work with
the parties to achieve a negotiated resolution."
The solicitors for Mrs Tapoohi confirmed his appointment "to act as mediator in the
proceedings".
On several occasions during the mediation it was made clear to the mediator that any
agreement reached would need to be subject to getting proper tax advice.
After approximately nine hours the parties reached agreement in principle. The mediator
told everyone to return to the main room so that they could get something down for the
parties to sign, saying forcefully:
"You have got to stay, you have got to do the terms of settlement tonight." "No, we
are doing it now. We are signing up tonight as that is the way that I do it, that's how
I conduct mediations." "Given the acrimony between these two sisters we must go
away with something that is written. It is in the interests of all the parties to sign up
tonight."
The mediator then dictated the Terms. There had been no discussion as to the price to be
paid for the shares. The mediator suggested $A1.00 as nominal consideration. Her
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13. solicitor took this as recognition that the Terms were not binding because of the need to
obtain tax advice. Nobody noticed that this requirement was not included in the Terms.
The solicitors’ argument
The solicitors pleaded the doubtful proposition that:
“the Parties retained the mediator for reward to act for them and advise them as a
mediator at the Mediation"
and that it was implied in the mediation agreement that the mediator would:
"(a) exercise all the due care and skill of a senior barrister specialising in
commercial litigation and related matters; (b) exercise all the due care and skill of a
senior expert mediator; (c) reasonably protect the interests of the Parties; (d) not
act in a manner patently contrary to the interests of the Parties, or any of them; (e)
act impartially as between the Parties; (f) carry out his instructions from the Parties
by all proper means; and further or alternatively (g) not coerce or induce the Parties
into settling the Earlier Proceeding when, at the relevant time or times, there was a
real and substantial risk that settlement would be contrary to the interests of the
Parties, or any of them."
The judge’s decision
The Judge dismissed the mediator’s application to strike out or dismiss the solicitors’ claim
for contribution, holding that it was arguable that the mediator owed duties to the
disputants in both contract and in tort, saying:
“I have reached the conclusion that it is not beyond argument that some at least of
the breaches of the contractual and tortious duties might be made out. I consider
that it is possible that a court could find that there was such a breach constituted
by the imposition of undue pressure upon resistant parties, at the end of a long and
tiring mediation, to execute an unconditional final agreement settling their disputes
where it was apparent that they, or one of them, wanted to seek further advice upon
aspects of it, or where it was apparent that the agreement was not unconditional, or
where the agreement was of such complexity that it required further consideration. I
emphasise that it is not for me to conclude that any of these things occurred in the
present case and I do not do so. It is sufficient that I conclude, as I do, that on the
evidence before me such a contention is not plainly hopeless.”
The outcome
In the absence of any reported judgement, it appears Mrs Tapoohi’s claim against the
solicitors and their claim for contribution against the mediator did not proceed to trial. In
the result, it remains to be judicially decided whether mediators do owe a duty in contract
or tort to disputants, especially where, as here, no formal Mediation Agreement was
entered into.
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14. Lessons for mediators
One advantage for mediators in having a formal Mediation Agreement is that the mediator
may expressly exclude liability to the parties. That might have been useful in this case.
It frequently happens in mediation that settlement is reached only after a very long day
when everyone is exhausted. (My own record is 21 hours, 40 minutes! I suggested we all
go to bed and come back next day. No-one accepted.)
In the case under consideration it took 9 hours to reach agreement in principle. It is not
clear how much longer it took to write the Terms and have them executed. My own theory
is that it usually takes three times as long for the lawyers to draft the settlement agreement
than anyone expects. Meantime the mediator needs to prevent everything from falling
apart. No doubt it didn’t take as long for the mediator in this case to do the drafting, since
he chose to do it himself. However, this case illustrates the danger for mediators in doing
so.
Where the parties are legally represented, the mediator can usefully hover behind them as
they write, occasionally suggesting some language or the need to address a topic, but not
in a way that could be understood as telling them what to do.
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