One of the most common forms of alternative dispute resolution is mediation.  It involves an independent third party who, rather than adjudicating on a matter, instead attempts to facilitate a settlement between two disputing parties.  Each year the Centre for Effective Dispute Resolution (CEDR) handles around 7000 disputes.  As Europe’s largest independent Alternative Dispute Resolution Organisation it is a well-recognised provider of mediators, mediation venues, model mediation documents, mediation rules and precedent mediation clauses for insertion into a variety of contracts. 

Every year CEDR updates its documents, which include, amongst other things, a Model Mediation Agreement and ADR Contract clauses, to reflect the changing use of mediation throughout the previous year.  At the start of 2017 CEDR’s Model Documents were amended to address five main issues:

1.     The difficulties experienced by parties in triggering a mediation

2.     Assisting those who wish to mediate at late notice

3.     Encouraging parties to attend mediation in a spirit of good faith

4.     Assistance to parties when mediation continues over the designated day of mediation

5.     The Impact of Technology

Having witnessed clients grappling with a number of these issues in recent times, we consider the following amendments/recommendations to be a welcome addition to CEDR’s offering:

1.     ADR clauses to expressly set out tighter timescales for a mediation to take place

from that previously given and a clearer process detailed together with stronger language used to explain the purpose of mediation and the use of an ADR Notice.

2.     Ensuring that parties are clear as to the deadline for delivery of papers prior to a mediation and provided with instructions on what is expected prior to the day to ensure all parties and their representatives are aware of their obligations.

3.     Requiring parties to be alive to the need to attend a mediation in good faith with a genuine spirit of negotiation and in the hope that settlement will be reached.

4.     Clearer rules on how a mediator can give assistance to parties post conclusion of the mediation where the parties wish for negotiations to continue.  Increasing direction on how the parties can continue communications as well as giving additional clarity on confidentiality outside of the mediation day.   

5.     In recognition of the increasing use of different forms of technology, advice has been issued for mediators on how to maximise its potential and avoid common pitfalls.

For those who think that mediation might be useful in the future and wish to provide for it as a mechanism of attempting settlement within contractual documents, and for those who are considering mediation as a means of attempting to resolve a dispute before formal court proceedings are issued or during the life of an ongoing matter, please don’t hesitate to contact us to discuss how these revised CEDR Documents may be able to assist you.