CEDR Solve

Preparation guide

The following document provides guidelines for parties involved in the CEDR Solve Clinical Negligence Mediation Scheme.

Documents to be delivered to the mediator

The Scheme aims to keep mediation costs and legal costs to a minimum. Accordingly, the parties should only deliver documents that are already in existence to the Mediator. Parties should not specially prepare documents for the mediation (other than the case summary - see below) unless those documents are necessary for the Mediator's or the parties' understanding of the issues.

The parties should deliver the following documents (if they already exist) to the mediator by the date nominated by CEDR Solve, approximately 14 days prior to the mediation date:

• a mediation case summary from each party (see details below)
• Particulars of Claim and Defence
• medical reports and other key expert reports
• witness statements;
• an updated Schedule of Loss and Counterschedule
• CRB Certificate
• other essential and relevant documents.

Each party must deliver a case summary to the mediator. One party (to be agreed) will then prepare and deliver an agreed bundle of the documents set out above to the mediator by the date notified by CEDR Solve.

Case summaries

Each party must deliver a case summary to the mediator and exchange those summaries with the other party. The case summary is confidential to the mediation and without prejudice.

The case summaries should be a maximum of ten pages and provide the mediator with an overview of the issues. The summaries may cover the following matters:

• the factual background
• the issues in dispute and key arguments on liability
• the issues in dispute and key arguments on quantum
• details of prior offers and/or negotiations.

Parties are encouraged to consider the following matters prior to the mediation. The mediator will usually wish to discuss these matters in private with each party and their legal representatives:

• each party's strongest and weakest points on liability and quantum
• costs and disbursements to date
• if there exists a Conditional Fee Agreement, what impact that may have on possible settlement
• what is the best possible outcome for your client at trial if the matter does not settle
• what is the worst possible outcome for your client at trial if the matter does not settle
• if the matter does not settle at mediation, when do you expect the next opportunity for settlement will arise (and what do you expect your client's costs and disbursements to be at that time)
• are there any non-monetary settlement terms which your client may consider
• what is the monetary range at which you consider the other side may settle
• how much of your client's time and legal adviser's time will be spent at trial if the matter does not settle at mediation, and what is the cost of that time.

Other matters which you should consider with your client prior to mediation are:

• your client's views on the dispute and future interests
• views on previous negotiation proposals
• views on why the matter has not been resolved
• decision-makers in the mediation process - previous relationship with the other team's decision-makers
• challenges for the other team
• challenges for your team
• funding for litigation - your team's/the other team's
• insurance coverage issues/contribution.

Who should attend the mediation?

A well prepared, small team that:

• presents the case persuasively
• works well together (and who may work well with the other team)
• looks at all the agendas that effect potential negotiated outcomes - i.e. commercial, legal and emotional needs of the clients
• includes the decision-maker with the authority to settle.

You should avoid bringing an unnecessarily large team. We encourage you not to attend with counsel or experts, so as to minimise costs. If necessary, you may wish to have counsel or experts available on the telephone for consultation.

Pre-mediation contact with the Mediator

Following confirmation of the mediation date, the mediator will contact the lawyer for each party to discuss the arrangements for the mediation including:

• the venue
• attendees
• the documents to be delivered to the mediator (as set out above)
• the Mediation Agreement.

The mediator will also contact the lawyer for each party (usually after reading the mediation documents) to discuss the mediation in general and (possibly) the matters set out above. Please take the opportunity at that time to raise with the mediator any queries or concerns that you or your client has about the mediation.

The mediation process

The Mediator will manage the mediation process. Usually the mediation takes the following shape:

• Each party will meet with the mediator in their private room prior to a joint meeting. The Mediator will check that each party has signed the mediation agreement and will answer any initial queries that the parties may have.
• The mediator will then chair a joint meeting of the parties in a joint meeting room. Each party will give a short opening statement, and then there may be further discussion in the joint meeting about the issues.
• The mediator will then meet with each party in their private rooms to discuss the issues arising from the joint meeting.
• The mediator will continue to either meet with the parties in their private rooms or in the joint meeting room to facilitate settlement.
• Any settlement reached will be recorded in writing and signed by the parties.

How long will the mediation day last?

The parties have already elected in the referral form to have a four-hour or eight-hour mediation day. There is no provision under the Scheme for extension of the time for mediation.

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