ID: 636259

MEDIATION

Mediation is a form of dispute resolution known as Alternative Dispute Resolution (ADR) in which an impartial third party independent mediator assists in facilitating series of both private and joint meetings with the parties involved to negotiate a settlement. Focusing on interests and needs not rights and wants without prejudice.

Furthermore, mediation is a voluntary (walk out) and confidential dispute resolution process rather than a decision making process, does not involve any freezing or search and seizure orders. It is more like diplomacy. In other words, the mediator controls the mediation process not the result, therefore no final judgement or award unlike the arbitrator with authority of making decisions or award.

However, English Courts encourages serious campaign to ensure that all litigation lawyers and judges are properly informed about the benefits of ADR and to alert the public and small businesses of those benefits. Hence, there is formal recognition of its importance as part of access to justice under the European Mediation Directive.

In conclusion, if case settled, parties give effect to settlement agreement and enforce it as a contract, and if not mediator offers future assistance or case proceeds to formal resolution by Arbitration or Litigation.

THE APPLICATION OF WITHOUT PREJUDICE RULE IN DISPUTE RESOLUTION

INTRODUCTION The term Without Prejudice as defined by Duhaime.org (2013) is a reservation made on a statement that it cannot be used against in future dealings or Litigation. It application is aimed at maximising an out of court dispute resolution. That is it creates a forum for the disputing parties to negotiate and settle their differences without going to court, with this the settlement process is not only facilitated but also the cost of court settlement is avoided. WITHOUT PREJUDICE PURPOSE AND APPLICATION According to Walker Foster Solicitors (n.d.), the purpose of without prejudice rule was that if negotiations failed and the dispute continued, none of the parties should rely upon admissions made by the other in the course of negotiations, therefore differences should be settled rather than litigation. However, Pirani (2007) and Manches (2011) reiterated that without prejudice rule might also apply to communications between parties outside the formal proceedings regarding the dispute and that may therefore apply to a mediation process with out resulting to litigation. Given an example with Muller and Muller v Lindsey and Mortimers case: the rule has two justifications. Firstly, the public policy of encouraging parties to negotiations and settle their disputes out of the court, and secondly, an implied agreement arising out of what is commonly known to be the consequences of offering or agreement to negotiate without prejudice.

To look at this another way, a case law example reported by Hamilton (2010), that in 1994 case of Daks Simpson Group Plc v Kuiper where the pursuer company claimed that a former director had received a commission of more than 600,000 from customers which he did not accounted for to the company and rather retained it for himself. Thereafter, the companys lawyer wrote a

letter to the director with a schedule of payments the director was alleged to have received. The director replied, concluding with without prejudice albeit indicating that whilst the schedule was exaggerated in some respects, sums exceeding 600,000 were due to the company and when the court was asked to judge against the director, he argued that his letter to the company was based on without prejudice therefore the letter could not be relied upon for the court action. However, Butler (2010) argued that Without Prejudice rule is worth buckling considering its application in high profile cases like Oceanbulk Shipping v TMT Asia Ltd in 2010, a case third of its king in the last 12 months. Furthermore, adding to his argument on why it should be buckled is the case of Robert Walker Lj in Unilever Plc. v The Procter & Gamble Co, 1999. This is a case where the defendant was alleged to have threatened the claimant in a Without Prejudice meeting.

CONCLUSION To conclude, it is extremely important that every solicitor and their clients should be aware of without prejudice rule and its effect. This is deemed necessary as some clients are not aware or have misunderstood it.

REFERENCES Butler, A. (2010), Dubious Privilege: Challenges to the 'Without Prejudice rule Continue to Come Thick and Fast. Commercial. [online] Available at: http://www.tanfieldchambers.co.uk/Asp/uploadedFiles/File/Dubious%20Privile ge%20-%20Andrew%20Butler%20-%20Solicitors%20Journal%2016.3.10.pdf [Accessed: 19 January 2013].

Duhaime.org (2013), Without Prejudice Definition. [online] Available at: http://www.duhaime.org/LegalDictionary/W/WithoutPrejudice.aspx [Accessed: 19 January 2013].

Hamilton, J. (2010), With or Without Prejudice?. MacRoberts LLP. [e-book] Available through: http://www.macroberts.com/images/CableTalkApril10JHWorWoutPrejud.pdf [Accessed: 19 January 2013].

Manches (2011), Avoiding Prejudice and Preserving Privilege. [online] Available at: http://www.manches.com/Content/Resources/files/publications/Avoiding%20P rejudice%20and%20Preserving%20Privilege.pdf [Accessed: 19 January 2013].

Pirani, R. (2007), The "Without Prejudice" Rule. Old Square Chambers: London. [e-book] Available through: http://www.oldsquare.co.uk/pdf_articles/3100151.pdf [Accessed: 19 January 2013].

Walker Foster Solicitors (n.d.), 'Without Prejudice'. What does it mean?. [online] Available at: http://www.walkerfoster.com/news-and-updates/103-without-

prejudice-what-does-it-mean [Accessed: 20 January 2013].