THE COURT’S MEDIATION SCHEME
The Commercial Court operates a mediation scheme. Under this scheme most cases that are received by the Commercial Court are sent for mediation. Mediation is explained below.
The Assistant Registrar at the Court will send your case to a special organization that employ people who are experts in mediation. This organization is called CADER and it is also located at Crusader House, on the floor below the Commercial Court.
If you or your advocate receives a letter telling you that your case has been sent for mediation then you should co-operate fully and follow the instructions contained in the letter. There are a number of deadlines and other directions you will have to follow.
What are the advantages of the Mediation Scheme?
The scheme has many advantages for both you and the Court. It can help settle your case quickly and may end up costing you less in the end.
What is mediation?
In mediation, each side to a dispute has a chance to put its case and hear what the other side has to say. A mediator helps both sides reach agreement about how a dispute should be settled. To get the best out of the process it is important that the parties understand it and come prepared.
What does it involve?
CADER will help you select a mediator by giving you a number of people to choose from. The mediator is not a Judge. He or she will not take sides or decide who is right or who is wrong. There is no need to call witnesses.
What happens at mediation?
Mediators have different ways of helping but what usually happens is that everyone involved will first meet in one room. The mediator will make sure that everyone knows who is present and will explain what the process is about.
Each side will then be given the chance to tell the mediator and the other side what their case is about and what they are looking for.
After the opening session each side may go to separate rooms and the mediator will visit each in turn. These are private sessions. The mediator must not tell the other side what he or she has been told unless given permission to do so. During the private sessions the mediator can discuss the case with you.
The mediator will be looking for solutions to problems and will be interested in what each side needs as well as what their rights may be.
By moving between sides, carrying information, suggestions, ideas, explanations or offers, the mediator will seek to help everyone to reach a solution to their dispute. If agreement is reached the mediator will bring everyone together again and an agreement will be drawn up and signed. If the parties want, this can be made into a Court Order.
Before the mediation:
You can go to the mediation by yourself or with a friend or adviser. You do not have to be legally represented but an advocate may be helpful, particularly if the dispute is complicated or if there seems to be a difficult legal problem.
If you are a company or a person who needs approval from somebody else before you can settle the dispute make sure you either bring the other person along or have something in writing from them showing that they have given you their permission to settle the case.
If you have any particular disability or language problems, let CADER know in advance.
Before the day of the mediation you should try to be prepared. You want the mediator and the other side to understand your case. Decide what the best way of explaining your position is. It may be helpful for you to make a list of the strengths and weaknesses of your case and, if you can, the strengths and weaknesses of the other sides’ case.
Bring along any really important documents, for example receipts to show that you have paid money, which is being disputed.
Remember that the mediator will be looking for a solution that is in the best interest. The mediator will not tell you what your rights are. Mediation is also not a substitute for a legal advice. If you need advice, try to take it before the day fixed for the mediation.
The mediator might ask for a short statement of your case before the day fixed for the mediation, otherwise he/she will have read the key documents on the Court file so will know what the case is all about.
At the Mediation:
What you say is confidential; you may know something that will help the mediator in talking to the other side.
Remember the mediator is not a Judge. When you are asked to present your case in the open session, try to get across to the other side what you think the dispute is about. Do not worry about details, the mediator can find out about the case when in the private sessions. Be brief. If you feel difficulty in talking about the case when the other side is present, tell the mediator who may decide to start private sessions straightaway.
In the private sessions try to work with the mediator to find a solution. Be frank. When the mediator is with the other side, use your time. Think about what has been discussed. Consider what you might be able to offer. Decide exactly what your needs are.
If you reach agreement, remember that you will be held to it and the court proceedings will be ended. Make sure you can live with it.
Even if the mediation does not end with an agreement you may find it was helpful and that each side understands the other’s point of view more clearly. You can always try to settle the case later but remember that once the action continues, costs will build up on both sides.
What does Mediation offer?
You are being given the chance to try to settle your dispute by mediation. The advantages of mediation are that it is quicker, cheaper and less formal than a trial.
Where does the mediation take place?
Mediation takes place at CADER in its own conference rooms.
When will it take place?
The mediation scheme usually begins after a defence has been sent to the Court.
Is there a charge?
There is no extra filing cost to the parties involved. However, each party bears its own costs and expenses of participation in the mediation.
What happens if only one of us wants mediation?
Mediation will only work if all the parties are willing to take part. You or your advocate may find it useful to contact the other party about this.
Can I bring someone with me?
Mediation involves informal discussions about the problem. It is not like a trial and there is no need to bring a witness. You can come by yourself or with a friend or advocate.
What if we can’t agree at the mediation?
Many mediations end in a settlement but if you do not reach agreement, you can continue with the Court action. Anything said during the mediation is kept confidential and cannot be used as evidence in the case as it continues in Court.