Index
| Author | Stephen Walker/David Smith |
| Pages | 233-248 |
References are to page numbers
Academy of Experts 60 Accountants 65, 67, 97
see also Expert witnesses; Non-lawyers
Ad hominem fallacy 117 Adjudication (as type of ADR)
13, 55, 56
ADR Group 42, 60, 85, 107 Alternative dispute resolution: introduction 2, 12, 13–15 adjudication 13, 55, 56 ADR Group 42, 60, 85, 107 arbitration 3, 13, 14, 28, 51,
54, 190–191 arbitrator’s immunity 55,
56
CIArb 54
contracts requiring parties to mediate first 40–42, 191
hybrid types 76, 197 CEDR see Centre for Effective
Dispute Resolution (CEDR)
Civil Justice Council Working
Party 29–30 Commercial Court Working
Party 33
conciliation 13 matrimonial, without prejudice rule and 49 ENE 13, 69
Jackson ADR Handbook, The see
Handbook (The Jackson ADR Handbook)
mediation see Mediation: introduction; Mediation day; Mediators; Uses of
mediation and entries for other individual topics
see also Choice as to whether to mediate, extent;
Confidentiality; Online dispute resolution (ODR) Ambiguity effect 117 Anchoring 117, 131–132, 154 Apologies 8, 17, 21, 125, 146,
147–148, 173
timing 147, 148, 159 Arb/med 197
Arbitration see Alternative dispute resolution: introduction, arbitration
Architects 60, 65
see also Expert witnesses; Non-lawyers
Authority bias 117
Authority to settle 76, 80, 103–
105, 122, 137, 144, 163
Barristers 3, 141, 155, 170,
194–195
advice from 97, 110, 112,
142, 167, 172, 185–186
on selection of mediator 61 direct access 164, 194–195 drafting by 90, 164, 186
fees 137, 163, 164
in-house 166–167
as mediators 60, 61, 62, 65,
68, 163, 165
see also Lawyers, as mediators whether should attend mediation 7, 162, 163– 165, 166, 172, 182, 185– 186
234 Advising and Representing Clients at Mediation
Barristers (continued) see also Lawyers;
Representatives: overview Base rate neglect 117 BATNAs 107
Belief bias 117
Bias blind spot 117
Body language 151, 198–199 Boundary and other neighbour disputes 16, 20, 33, 173, 185
Bundles 81, 83–84, 85, 89, 93,
94–96, 99
Caucuses see Mediation day, private meetings with mediator
Centre for Effective Dispute
Resolution (CEDR) 21–22, 42, 51, 60
Seventh Mediation Audit 67 Eighth Mediation Audit 4, 15,
59, 63, 70, 193 Chartered Institute of Arbitrators
(CIArb) 54
Choice of mediator see Mediators, selection
Choice supportive bias 117 Choice as to whether to mediate, extent 27–43 introduction and summary 1,
3, 27, 43, 143
practice: overview 30–32 theory: overview 27–29, 57 refusal to mediate 30–31, 32–
40, 42, 43
analysis of Halsey criteria
32–39
costs implications of unreasonable refusal 30–31, 38, 39, 42, 43, 57
position of public bodies
21, 34
reply to Halsey letters: guidance 39–40, 43
silence, contrasted with refusal 32, 39, 40
where agreed plans for mediation have been made 39, 51, 87
where a binding precedent is desired 23, 33–34
where a contract has a mediation clause 40– 42, 191
where insurers seek to prevent further cases 34
where a round-table meeting has failed 14, 36
where there is a dispute over timing see Timing of mediation, stage which dispute has reached
withdrawal from mediation see
Withdrawal from mediation
see also Disputes, particular types; Uses of mediation Civil and commercial disputes: introduction 2, 4, 15, 19– 20, 21, 83, 94, 107
CMC 54, 61, 64
CMG Survey 59, 61, 62, 63,
70–71
Commercial Court Working Party on ADR 33 contractual claims, and scope of CAMS pilot 33 hybrid disputes see Family and hybrid disputes involving companies or partnerships see
Companies; Partnerships Civil Justice Council (CJC)
Working Party on ADR 29–
30
see also Judiciary
Civil Mediation Council (CMC)
54, 61, 64
Clinical negligence see Personal injury and clinical negligence disputes
Co-mediation 199
Cognitive biases and similar pitfalls 10, 116–119, 173 anchoring 117, 131–132,
154
confirmation bias 24, 117 curse of knowledge 24, 117 hyperbolic discounting 114,
118
information bias 24, 118 irrational escalation 25, 118 prior relationship bias 73–74 reactive devaluation 72, 74,
119
Commercial Court Working Party on ADR 33 Commercial Mediation Group
(CMG) Survey 59, 61, 62, 63, 70–71
Companies
apologies by 147–148 authority to settle 103, 104,
122, 137, 185
see also Authority to settle choice of personnel to attend
122, 159
identification 75
as third parties 18 Conciliation 13
matrimonial, without prejudice rule and 49 Conditional fee agreements
(CFAs) 98, 102, 106, 109– 110, 164, 165, 190 Confidentiality 45–57 introduction 45, 144
confidentiality clauses in mediation agreements
34, 51, 52–53, 75–76, 141, 187–188, 196
duty of mediator 51, 52–53,
56, 76, 82, 176, 177, 196 in Scotland 48
see also Mediators, extent of duties to parties GDPR 196
legal professional privilege
52, 54
mediation privilege, whether existing 50–51
ODR and 198
position papers and 82, 88,
89, 90, 92, 93 pre-mediation contact between representative and mediator 82, 132–133 settlements and 53, 97, 186–
187
UK mediations with an international element 53, 54–55
without prejudice rule see
Without prejudice rule see also Disclosure Confirmation bias 24, 117 Conflicts of interest 56, 141,
144
Contingency fees (DBAs) 102,
163, 164, 165 Contracts
claims under, and scope of
CAMS pilot 33 commercial contracts, negotiation, ICC guidance for mediators 20 contractual aspect of without prejudice rule 46–47 contractual nature of mediation settlements: introduction 15
236 Advising and Representing Clients at Mediation
Contracts (continued)
mediation clauses 40–42, 191
Costs 2, 3, 18–19, 23, 28, 30, 134
authority to settle in relation to
137, 163
implications of unreasonable refusal to mediate 30–31, 38, 39, 42, 43, 57 information in position statement 94 information to take to mediation 98, 137 lawyers’ fees, basis of calculation 2, 98
of mediation 36–37, 75, 76,
80, 81, 83, 95
Halsey criteria and 32, 36–
37, 39
mediator’s fees see Mediators, fees
venue costs 77, 78 mediation as source of business
3–4, 12
position if there is full or partial settlement at mediation 189
position if there is no settlement at mediation
75, 188–189 pre-mediation analysis and
102, 106, 108, 137, 166, 188–189, 190 examples 108–110 sources of funding
CFAs 98, 102, 106, 109–
110, 164, 165, 190 contingency fees (DBAs)
102, 163, 164, 165 insurance see Insurance other 98, 104–105, 163,
164, 185
without prejudice rule and
48–49, 49–50
see also Part 36 offers Costs Alternative Dispute Resolution 22 Counsel see Barristers Counterclaims 36, 130 Court of Appeal Mediation
Scheme (CAMS) 4, 33 Cross-border issues 53, 54–55,
56, 61, 190–191, 198 see also Foreign systems;
Scotland and index entries starting with the word International
Curse of knowledge (as cognitive bias) 24, 117
Damages-based agreements
(DBAs) 102, 163, 164, 165 Data protection: GDPR 196 see also Confidentiality Disclosure
disclosure via the mediator
174, 178
extent to which needed 24,
37–38, 39–40, 116, 131, 160
misguided refusal or delay
73, 80–81, 92
requests causing doubt as to good faith of requesting party 50–51, 92
legal professional privilege
52, 54
see also Confidentiality Disputes, particular types 19–
22
introduction 19, 21, 33 specialist mediators: pros and cons 68–71, 72 boundary and other neighbour disputes 16, 20, 33, 173, 185
civil and commercial disputes: introduction see Civil and
commercial disputes: introduction
disputes with an international element 53, 54–55, 56, 61, 190–191, 198
see also Foreign systems;
Scotland and index entries starting with the word International
disputes involving counterclaims 36, 130 employment and partnership disputes 20–21, 97, 106, 125, 135, 191
family and hybrid disputes se...
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