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02 August 2007 / Chloe Carswell
Issue: 7284 / Categories: Features , Mediation
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Inside mediation

When will courts waive the without prejudice rule for mediation? Chloe Carswell reports

The courts have wholeheartedly embraced mediation since it was enshrined in the Civil Procedure Rules in 1999. Case law including Dunnett v Railtrack plc (in railway administration) [2002] EWCA Civ 303, [2002] 2 All ER 850 and Burchell v Bullard [2005] EWCA Civ 358, [2005] All ER (D) 62 (Apr) demonstrates that the courts will not hesitate to apply costs sanctions to parties who unreasonably refuse to mediate.

The benefits of mediation are clear. It is a flexible process with a neutral third party who tries to facilitate a settlement of the dispute. It is a (relatively) cheap and swift method of dispute resolution which allows for creative solutions not otherwise available through the courts, and which allows for quasi-direct negotiation between parties. Perhaps most importantly, it is confidential, without prejudice and non-binding—unless and until there is a signed settlement agreement.

A FORM OF PRIVILEGE

The “without prejudice” rule exists to encourage parties to reach a settlement of a dispute without fear of anything said during the course of settlement discussion—particularly concessions

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Gateley Legal—Jack Kelly

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NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
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