Mediation sits at the heart of civil dispute resolution: a flexible, confidential process the courts actively encourage and will penalise parties for unreasonably refusing.
A dispute that settles at mediation never reaches trial, which is why the courts have built a framework of duties and sanctions around it. This chapter begins with what mediation is, the mediator's role, how facilitative and evaluative styles differ from each other and from arbitration, and when the process suits a dispute. It then examines the solicitor's duty to advise on ADR, the court's powers to order mediation and stay proceedings, and the costs consequences that can follow an unreasonable refusal — including silence in the face of an invitation. Finally it works through the protections of confidentiality and the without prejudice rule, what makes a settlement agreement binding and when it can be set aside, and how settlements are enforced through consent orders and Tomlin orders.
