The onus on parties to use alternative dispute resolution procedures is well established in English proceedings. Powers provided to the courts to impose costs sanctions for unreasonable litigation conduct, or failure to comply with protocols and court directions or orders (under Pt 44 of the CPR), coupled with the institutionalised use of 'ADR Orders' result in intense pressure on parties to seriously engage with alternative dispute resolution procedures (including mediation). The of the court's powers to discipline parties that refuse to comply with orders through award of costs, as recommended by the Jackson Report, is likely to only continue to encourage this trend.
Against this backdrop, it is not surprising that bodies offering alternative dispute resolution models are consistently looking for ways in which to refine their forms of the mediation model offered to attract a greater share of this growing market. The Centre for Effective Dispute Resolution (CEDR) is one such body that has recently released an amended form of mediation procedure. On the whole, the twelfth edition of the Model Mediation Procedure contains fairly unsurprising refinements to the model. However, the following innovations are all noteworthy.
The innovations
Under the new procedure, CEDR now has the power to recommend co-mediators or a neutral expert to advise the mediator on technical matters. It is hard to see the value of this new facility. Mediation should, by its very nature, involve a largely 'high level' examination of the participating parties' cases. It has to be hoped that most mediators have the capacity to distil complicated technical arguments to their essence and explore these with the parties. If the subject of the dispute hangs on particular technical considerations, presumably the parties would be inclined to seek out a mediator who has experience in this area (both as a mediator and within the relevant industry generally). This power of recommendation therefore seems to be either superfluous, or likely (if used regularly) to drive up the costs of mediation under the CEDR model.
The deadline by which the parties are required to issue their mediation bundle to both the mediator and the other side has been cut from two weeks to one week prior to the date of mediation. This change to the model procedure is presumably intended to make the model more deployable at very short notice. However, for long-standing or complex disputes where the position of the parties is entrenched, there is some obvious value in both parties and the mediator having as long as possible (within reason) prior to the mediation to consider the respective positions. So, while the shortening of this period may improve the speed with which the parties can be brought to mediation, it might reduce the efficacy of the mediation for the more entrenched or complex dispute.
Given the often protracted daily sessions of a mediation, converting agreement in principle into a fully drafted settlement agreement often takes place at the least propitious point in the process for this to be successfully achieved. The CEDR model now sensibly allows for the parties to conclude the mediation by setting out the terms in principle, with the drafting of binding terms to follow. This development should facilitate the drafting of sound follow-up settlement agreements without permitting parties to retreat from positions agreed at mediation and should be welcomed.
First published in Construction Law
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