Mediate and get your money back
Last week I blogged about the Civil Justice Committee’s report on how to encourage mediation, perhaps the high court in India have another method of persuasion (hence the carrots above).
The court fees Act s16 and 16a allow under certain conditions that where a case (at an early stage) is referred to mediation and there is successfully concluded agreement then the full fees paid by the claimant can be refunded, now the Delhi High Court has given guidance confirming this is the case and that even where both the requirements for a full refund are not met there can still be consideration on whether up to 50% of the fees can be repaid.
Given the increasing costs incurred in the courts of England and Wales this would certainly be a fantastic carrot to encourage settlement via mediation to go with the stick of the potential penalties set out in Halsey et al.
The Delhi High Court set out the following to be clear that it is not merely the referral to mediation under the ADR code which gives rise to the refund but the act of settlement:-
“On a proper construction, therefore, this Court is of the considered view that Section 16 can be made applicable only when parties are able to reach a settlement after a reference to ADR under Section 89 of the [ADR] Code”
For further clarity the court added in its judgment “A difficulty arises however, in the case of mediation/conciliation, initiated upon a reference by Court. These cases can potentially fall both within Section 16 and 16A of the Act. On a plain reading, Section 16 would apply as the parties are referred to mediation by an order of Court. However, Section 16A would also apply, as long as the mediation is at a pre-evidence stage of the suit, and the settlement agreement has been incorporated in a compromise decree.
This Court has framed Rules under Part X and Section 89 (2)(d) of the CPC, entitled the Mediation and Conciliation Rules, 2004. Rules 24 and 25 of the said Rules require an agreement between the parties to be reduced into writing and signed by them, which would be forwarded to the Court in which the suit or proceeding is pending.
On receipt of the settlement agreement, the Court upon its satisfaction is required to pass a decree in terms thereof, that the parties have settled their disputes. In such a case, we are of the view that an interpretation of the statute inuring to the litigant’s benefit should be preferred. If a plaintiff is able to demonstrate that the case falls within the requirements of Section 16, refund of the full amount of the court-fee FAO ought to be granted”
Meanwhile in Ireland mediation is seen as “the only game in town” by the Irish Cattle and Sheep Farmers Association (ICSA)This week the association called on fincncial institututes and so called vulture funds to knock off the heavy handed tactics and look to mediate with the Associations members.
Seamus Sherlock the Rural Development Committee chairman for ICSA said in a press release that “The unfortunate scenes at a Roscommon farmyard over recent days were reminiscent of something from the turn of the century.
“Nobody wants to see families being dragged and beaten out of their homes by security personnel… Banks and vulture funds must sit down with families and explore every avenue to restructure the debt so that all parties can move forward with consensus and certainty… Violence at farm gates is not the answer; meditation is the only show in town and ICSA is here to assist farm families who are making a genuine effort to honour their commitments”
There have been violent confrontations in Strokestown County Roscommon between ICSA members and their families being forcibly evicted by bank “agents” which left numerous vehicles burnt out and three people hospitalised.
And finally as it’s nearly Christmas here’s an animal story of mediation.
Cincinnati zoo and the Gorilla Foundation have been ordered to attend mediation to work out what is in the best interests of the zoo’s silver back Ndume (which I thought was a type of soft sausage).
Acknowledging the role of mediation at settling matters when interests are aligned Judge Richard Seeborg said "Accordingly, assuming that both sides in good faith genuinely believe the best interests of Ndume are paramount in this situation, it would behoove all involved, human and gorilla, for the parties to pursue expedited alternative dispute resolution"
There are so many cases which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public (and some lawyers) will go to avoid referral.
Whether you need a mediator to help out with a construction matter in the Northwest, or council’s plans in Cheshire, a civil mediator in London, a commercial mediator in Manchester, a dispute resolution for your family in Liverpool, a neighborhood mediation in Stockport, then our mediators at Northwest Mediation can help.
Mediation is cheaper, quicker and less stressful than running any case to court, it can help with any dispute whether it's an employment issue or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes or inheritance arguments contact Northwest Mediation on 07931318347 or via email at email@example.com
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