The Legacy of the Magna Carta and Its Influence on the United States Constitution and Bill of Rights

The Magna Carta, or Great Charter, is a charter drawn by English noblemen guaranteeing certain English rights and defining English political and civil liberties. It was signed by seal of King John of England on June 15, 1215 in an attempt to ensure the continued loyalty of the nobility. While Pope Innocent III nullified the agreement 10 weeks later, the document was reissued with alterations in 1216, 1217 and 1225. In 1297, Edward I entered the Magna Carta into the statues of the realm, making it the first entry on the statute books. While the Magna Carta was initially meant to protect only the rights of noblemen, it was eventually extended to commoners and served as the foundation for English Common Law.

The Magna Carta included 63 clauses that served to address the principal problems affecting England during the reign of King John including inheritance; debts and the payment thereof after death; the administration of justice; the levying of taxes; forests, riverbanks and river weirs; and freedom of trade and travel among others. While the Magna Carta was not originally numbered or divided into separate clauses, a numbering system was provided by Sir William Blackstone, in 1759 in a published edition of the 1215 version of the Magna Carta.

The statute that had remained dormant for many years was revived by Sir Edward Coke in the seventeenth century. Coke served as attorney general for Queen Elizabeth I, chief justice of the King’s Bench for King James I, and as both solicitor general and speaker of the House of Commons. Coke touted the Magna Carta as authority for challenging the Stuart kings’ claims of royal prerogative and he interpreted the Magna Carta as an affirmation of the principles of individual liberties and as a declaration of English rights held since antiquity. The importance that Sir Edward Coke attributed to the Magna Carta was reflected in the laws of the colonies and his interpretation led to the claim of the inviolability of an individual’s right to due process of law.

Englishmen who came to the American colonies believed that they were entitled to the rights of Englishmen embodied in the Magna Carta and as defined in the English Common Law, and it was upon this framework that the colonists began to build the laws of this land and assert their liberty from the English Crown. Thus, the rights and liberties asserted in the Magna Carta were embodied in the written laws of the colonies, and later into the Constitution and the Bill of Rights.

When framing their State Constitutions, nearly all of the original colonies included a declaration of the fundamental rights and liberties of man. While the Constitution of 1789 embodied various declarations of the fundamental rights of men, it did not include a formal Bill of Rights, such as that included in the State Constitutions. Intense debate over the need for a declarative statement outlining the rights of citizens ensued. As a result, Articles three through twelve, known as the Bill of Rights, became the first ten amendments to the Constitution of the United States.

The Bill of Rights, passed in 1789, and put in effect in 1791, secures the essential rights and liberties of the individual citizen and limits the government’s power in judicial proceedings. Many of these rights and liberties, as well as the theory of representative government, the idea of a supreme law, and the concept of judicial review descend from an eighteenth-century understanding of the Magna Carta.

Freedom of Religion:

The English concept of freedom of the church served as the basis for our First Amendment guarantee of freedom of religion. The First Amendment to the Constitution of the United States provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… ” Similarly, Clause 1 of the Magna Carta provides “That the English Church shall be free and shall have her whole rights and her liberties inviolable… ” Clauses 62 and 63, which were omitted from the later reissues of the Magna Carta, also reaffirm the freedom of the Church.

Due Process:

The following Amendments refer to due process and descend from the Magna Carta: Fifth, Sixth, Seventh, and Eighth. The concept of due process was expanded to include the right to bear arms (Second Amendment) and to not be subject to cruel and unusual punishment (Eighth Amendment).

Due process, derived from Clause 39 of the Magna Carta, deals with the administration of justice and the rights of individuals. Clause 39, which has never been rescinded, provides that “No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison excepting by the legal judgment of his peers, or by the laws of the land.”

Clause 39 guarantees that the administration of justice shall be according to “the laws of the land.” While the concept of “law of the land” is not defined in the Magna Carta, it has over time come to mean the right to trial by a jury of one’s peers, the right to confront one’s accusers, and the right to appeal.

The term “due process of law” first replaced the phase “the law of the land” in 1354 in a statute restating the Magna Carta’s procedural guarantees. It is this guarantee that is embodied in the due process clause of the Fifth Amendment. The Fifth Amendment to the Constitution provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, expect in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Article 1, Section 9 of the Constitution also includes a similar provision. That article, known as the Suspension Clause, provides that “the privilege of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” It should also be noted that the Fourteenth Amendment to the United States Constitution, ratified in 1868, also contains a due process clause.

The Fourteenth Amendment granted citizenship to “all persons born or naturalized in the United States” and forbid states from denying any person “life, liberty or property, without due process of law” or denying “any person within its jurisdiction the equal protection of the laws.” The provisions of the Fifth Amendment were introduced as a check upon the federal government while those enunciated in the Fourteenth Amendment were directed towards the individual states in the Union. Taken together, however, the two amendments ensure that the individual’s right to life, liberty and property remain inviolate vis a vis both the state and federal government.

The concept of ensuring that the individual’s right to life, liberty and property remained inviolate vis a vis government is further illustrated in the Ninth Amendment to the Constitution wherein it is stipulated that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Clearly, the framers of the Constitution intended that the rights that they held prior to the framing of the Constitution, such as those claimed from the Magna Carta, were never lost nor limited by the Constitution.

Trial By Jury:

As previously noted, Clause 39 of the Magna Carta includes the guarantee that “no freeman shall be taken or imprisoned… except by the lawful judgment of his peers.” The intent at the time was to force the king to relinquish judicial authority to peers of the individual on trial. Thus, while the Magna Carta did not contemplate the jury system that we have in the United States, it did serve as its inspiration. The colonists viewed the right to a jury trial as an essential liberty and a basic safeguard of freedom from arbitrary government. Thus the concept espoused in Clause 39 that “no freeman shall be taken or imprisoned… except by the lawful judgment of his peers” was incorporated into the Sixth Amendment to the United States Constitution.

The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Thus, similar to Clause 39, the Sixth Amendment ensures a trial by a jury comprised of fellow citizens.

Clause 40 of the Magna Carta states that “to no-one will we sell, to no one will we refuse or delay, right or justice.” This concept of swift justice is also reflected in the Sixth Amendment in the guarantee that “the accused shall enjoy the right to a speedy and public trial.”

While the Sixth Amendment secured a right to a jury trial in criminal cases, it did not apply to civil cases. The Seventh Amendment, however, was created to guarantee a jury trial in civil cases. The Seventh Amendment mandates that “in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The rights sought by the barons in 1215, as defined in the Magna Carta, not only found their way into the United States Constitution and the Bill of Rights, but those essential rights can also be found in the jury instructions issued from Judge to jury in the United States. That is, these rights can be found in the terms presumption of innocence and burden of proof.

No Trial without credible witnesses

Clause 38 of the Magna Carta, later re-numbered 29, provides that “No bailiff, for the future, shall put any man to his law, upon his own simple affirmation, without credible witnesses produced for the purpose.” Clause 38’s requirement that no man be put to trial without reliable witnesses found its way into the Sixth Amendment in the guarantee that “the accused shall enjoy the right… to be confronted with the witnesses against him.” In our judicial system, however, it is for the jury to decide the credibility of a witness.

Cruel and Unusual Punishment:

During the reign of King John, there existed a concern regarding the severity of the punishment to be rendered. Thus Clause 20 of the Magna Carta was written to ensure that “A free-man shall not be fined for a small offence, but only according to the degree of the offence; and for a great delinquency, according to the magnitude of the delinquency, saving his contentment… and none of the aforesaid fines shall be assessed, but by the oath of honest men of the vicinage.” To ensure that punishments were not overly excessive, Clause 20 mandated that the punishment be in line with the gravity of the offense. This same principle is expressed in our Eighth Amendment in the guarantee that “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Theory of Representative Government:

The longest clause of the Magna Carta, Clause 61, known as the security clause, was the most significant clause affecting King John in 1215. Clause 61 provided that a committee of 25 barons could meet at any time and overrule the will of the King, by force if necessary, if he defied the provisions of the Charter, and they could seize his castles and possessions. As this was the first time that such a practice had been forced upon a ruling monarch, Clause 61 was a serious challenge to King John’s authority. Not surprisingly, Clause 61 was omitted from all later reissues of the Magna Carta.

Clause 61 provides in part that “… since we have granted all these things… we being desirous that these things should possess entire and unshaken stability for ever, give and grant to them the security underwritten; namely that the Barons may elect twenty-five Barons of the kingdom, whom they please, who shall with their whole power, observe, keep, and cause to be observed, the peace and liberties which we have granted to them, and have confirmed by this our present charter… And if we shall not have redresses… the twenty-five Barons… shall distress… us… by the taking of our castles, lands, and possessions… ”

During the time of the Tudors, the Magna Carta served as a basis for establishing the first Parliament to assist in enforcing the rights claimed by common law. Later, in Elizabethan times, the Magna Carta was used to establish the antiquity of Parliament.

The primary significance of Clause 61 is that it laid the framework for the basic form of government in both England and in the United States. In this regard, the twenty-five baron committee was representative of what would later become Parliament and a balance to the King’s power. In turn, the English governmental system of Monarch, Commons, and Lords provided the legal foundation for our system of two houses of Congress and the Presidency. The framers of the Constitution were influenced by the constitutional relationship between the Monarch, Commons and Lords in the British governmental system and it is from this system that the legal foundation for the two houses of Congress and the Presidency, as well as the idea of checks and balances, was born. The legislative, executive and judicial branches of the government, along with the system of checks and balances, are established in the first three articles of the Constitution.

For the framers of the Constitution, the checks and balances that operated between the three branches of government were a means to prevent any single branch from overreaching and exceeding its powers. Thus, the Constitution and the Magna Carta were prepared with the same intent in mind. Both documents limit government by requiring submission to the law and by requiring recognition of the rights of citizens.

The Tenth Amendment to the United States Constitution provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Thus, the Tenth Amendment makes it clear that our federal government possesses only those powers granted to it by the Constitution. The states, however, possess all powers which the Constitution neither delegates to our federal government nor prohibits the states from exercising; stated differently, all powers not expressly delegated to the federal government nor denied to the states, remain with the states or the people.

Idea of a Supreme Law

The Magna Carta has also been credited with providing the basis for the idea of a higher law. In this regard, it is considered a superior law such that even kings must be subject to the law, and any attempt to invalidate it need not be respected. The concept that the Magna Carta provided the basis for the idea of a higher law is embedded in Article VI, Paragraph 2 of the United States Constitution. Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides that “this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Thus the Supremacy Clause mandates that the Constitution together with all treaties and all national laws made in pursuance of the Constitution constitutes the “supreme law of the land” in the United States. The Supremacy Clause further mandates that all judges in all states are bound by this “supreme law of the land,” and that the state courts must refuse to uphold any state law that is contrary to this “supreme law of the land.” This concept of a supreme law, embedded in the supremacy clause, is enforced by the Supreme Court.

Judicial Review

Clauses 39 and 40, discussed above, also serve as a basis for the concept of judicial review. It is through judicial review that our courts interpret the meaning and intent of laws.

Conclusion:

Many other aspects of our Constitution can be traced, either directly or indirectly, to the Magna Carta. As the 800th anniversary of the Magna Carta approaches, it is important to reflect upon the Magna Carta’s influence on the development of the United States Constitution and those ideals of liberty and justice, symbolized in both documents, that continue to inspire and guide the citizens of our great nation.

Article Source: http://EzineArticles.com/expert/Steve_W_Sumner/1258028

 

How Do You File A Lawsuit Against a Creditor for a Fair Debt Collection Practices Act Violation?

The Fair Debt Collection Practices Act or FDCPA protects the clients against illegal practices or unfair tactics being adopted by the creditor. For instance, under this act it is being stated that the creditor cannot give you threat to cause physical injury or that he cannot give you threat to put you in prison. Plus, he cannot use abusive language or he cannot sue you unless he has gathered enough legal evidence or valid witness against you. If you feel that there is violation of Fair Debt Collection Practices Act, then it is advisable that you should talk to a proficient lawyer in order to seek his advice as much as you can.

The first step that you should follow is to make a long list of details about him such as keep a note of your conversation with him, write down the exact date as well as time he has called you, and so on. It is vital that you should keep a track of all the details of correspondence with him. It is vital that you should keep copies of the letters you have already sent him. If possible, it is advisable that you should record all the abusive voice mails you have received from him in the best possible way.

The next step that you should follow is to file your complaint against the creditor with the Federal Trade Commission absolutely at free of cost. Once you make this type of complaint it is vital that you should keep one copy of your complaint with you.

You should then request your witnesses to give you sworn statements as quickly as possible. For instance, if your colleague gets repeated calls from the creditor even after your repeated requests to stop this kind of activity, it is vital that you should request your colleague to create a valuable statement along with relevant details. You should also always keep a copy of this type of statement along with you.

Before you actually file a lawsuit against your creditor, it is advisable that you should get one copy of Fair Debt Collection Practices Act from the website of the Federal Trade Commission. You can also visit a local library in order to locate federal law book that contains details of this particular act.

You should use this particular act as your point of reference and you should write down the details of violations of Fair Debt Collection Practices Act you think you have suffered from till date. It is vital that you should write down exact section, number and other aspects which you think that your creditor has violated.

You should identify the right court along with jurisdiction in order to file your case. Once you identify it the next step that you should follow is to go there, submit your list of FDCPA violations you have suffered and you can request your court clerk to give you this type of form as soon as possible.

The next step that you should follow is to complete this type of form as much as you can. In fact, these forms differ from one area to the other and you usually need the address, name of your business, the nature of the lawsuit as well as types of damages you have incurred. All you have to do is to write down violations of the FDCPA, you have suffered and it is important that you should also mention them on this kind of form.

The final step that you should follow is to file this type of form on the court as soon as possible and that you should request for one copy of the same along with stamp without any kind of delay.

Effective credit repair allows you to fix your bad credit report and improve your credit scores in the best possible way. A proficient lawyer can help you in this matter. The case of debt collection abuses is also rampant. Like credit repair lawyer, debt collection attorney helps you to handle issues related to abusive debt collection.

Article Source: http://EzineArticles.com/expert/Carlton_Mansour/2140327

 

Why Legal Aid Services Should Be Accessed in a Native Language

Legal aid at the first point is the provision of support given to individuals who are like unable to afford legal representation and access to the court system. It is regarded as central in delivering access to justice by ensuring equality before the law, the right to counsel and the right to a fair hearing or fair trial.

Providing legal help is basically dealing with people who may or completely don’t use English as their primary language. This gives a call to legal sustain services providers or organizations to deliver their services to people targeted in their own native languages. Since it is necessary for guaranteeing justice for all, it’s then essential use legal aid translation services provided by reputable translation companies. This will ensure easy access of legal support services in target client’s native languages.

Delivering legal abet services that are translated in someone’s native language helps two parties; that is a service provider and the client, the importance here is that where the client gets or accesses legal help in his or her own native language will feel comfortable and really believe that his rights are rendered properly. Translation into a native language will still help the service providers to easily communicate with their clients.

The terminology and the legal language is often tricky and hard to be understood by individuals, to really help the person to benefit from the service provided, this legal language and its terminology has to be broken into a layman’s language, and do you think anyone can do this? Never, legal aid companies will need to use experienced and specialized legal translators who are bilingual in the most spoken languages than English. This will help to break all legal terminology into the client’s native language.

To make the provision of legal aid services consistent and convenient for the clients, translation of all legal aid documents into a client’s native language is a necessity than an option. You cannot claim that you are helping someone, for instance, getting a person a lawyer who will start using the legal language with its complicated terminology that someone can’t understand; at the end, the client will have gotten no help. Helping both the lawyer and the client to communicate, legal aid translations must be in place because the lawyer needs to understand what the client says and the client must understand what his lawyer says, the solution here is legal aid interpreting by a professional legal interpreter.

Native language evaluation and planning

To make sure that clients get meaningful access of legal aid services from your organization, I see it is very vital to carry out language evaluation and also creating a complete limited English ability plan. This plan must solve the procedures such as;

  • Identifying the staff language capacity
  • Assessing the client language needs so as to provide accurate translation or interpretation services
  • Properly serving the clients with limited English proficiency through outreach
  • Training the staff, volunteers, and attorneys who will communicate with the client
  • Use of the translators or interpreters.

After the evaluation and planning is complete, it will help the providers to properly know the language capacity of the client and then hire an experienced translator of an interpreter to help the client communicate with either the attorney or the lawyers.

Therefore, the legal aid service providers should design a better limited English proficiency plan that will lay out the procedures for helping the clients who speak other languages than English and also ensure sufficient resources to support adequate legal aid interpretation and translation services.

John Kerri a marketing assistant at KL Translations Ltd, a translation company that delivers professional legal aid translation services in over 100 languages.
For more information, http://www.legalaidtranslation.com/

Article Source: http://EzineArticles.com/expert/John_Kerri/2176579

 

How to Outsmart the Wealth Confiscators

I’m not a gambling man. That makes perfect sense, given that my specialty here is wealth preservation, not investing for income. (Not that investing is gambling – when done right, it’s a science.)

Speculative types tend to go for big predictions. My predictions tend to be more of the… ahem… common-sense variety: Government is going to continue to cause you problems; there are more threats to your privacy in the near future; the election isn’t going to change anything fundamental.

Occasionally, however, I stick my neck out, as I’m going to do here and now.

There is an overwhelming chance that during 2016, a great many of you are going to take a critical step… one I’m convinced has become absolutely necessary in our troubled world.

How Not to Be Seen

Readers who are accustomed to my quirks probably know – or could guess – that I’m a fan of the great British comedy troupe, Monty Python. Casual watchers of their sketches often assume that they’re just nonsensical madcap. But anyone who studies Monty Python a bit more deeply knows that their farce contains some serious social and political commentary – usually aimed at haughty institutions that claim to know better than we do and seek to control us.

One of their most memorable sketches is a faux British public service announcement on “how not to be seen.” In it, various law-abiding Englishmen, such as “Mr. E.V. Lambert of Homeleigh, the Burrows, Oswestly,” are blown to smithereens while trying to hide from Her Majesty’s cameras.

As you may imagine, that one has stuck with me since I first saw it as an impressionable lad. The Pythons were definitely on to something.

Hiding in Plain Sight With an LLC

Periodically, I receive letters from readers wanting to know where they can open a foreign bank account that the IRS won’t know about. I tell them to forget about that. These days, you can’t hide from the government, and there’s really no point in trying. It will only create more risk to your wealth. We always advise compliance with the law, and as much as we may hate it, failure to report income to the government is illegal and severely punished.

But that doesn’t mean you can’t put a little distance between yourself and your wealth. The basic step everyone should take – one that I predict many of us will take in 2016 – is to create a legal identity separate from your own to hold the bulk of your wealth.

For example, a limited liability company (LLC) can own financial accounts, real estate, businesses, precious metals and other assets. It can own your car and your credit card accounts, as well as serve as a legal address for correspondence. An LLC can even own your Individual Retirement Account (IRA) and allow you to take direct control, giving you the ability to invest in things most IRAs can’t touch.

Due to the legal concept known as the “veil,” anything legally owned by a properly-structured LLC is out of reach of litigants who may attack you, and vice versa. For example, owners of rental property portfolios can vest title of their properties in one or more LLCs, insulating themselves and their other properties from tenant lawsuits. Bank accounts owned by an LLC are off-limits to litigants who sue you personally.

Now, this doesn’t give you 100% freedom to do as you please with no consequences. If you’re successfully sued, assets can remain stuck in an LLC until you reach a settlement. But the beauty of the LLC is that the time, effort and expense of attacking assets held that way serves to discourage lawsuits in the first place, both by making ultimate ownership hard to determine and creating serious legal obstacles to successful litigation.

In other words, LLCs allow you to hide in plain sight.

The Offshore Advantage

LLCs based in foreign jurisdictions can do the same things their U.S. counterparts can do. But being located in an offshore jurisdiction makes them much more effective at discouraging attacks, especially against assets also held offshore, like bank and investment accounts or precious metals in storage. Like lions encountering a prey that’s too big to bring down, those predators will move on to another target.

Offshore LLCs also offer some unique tax advantages. For example, if you live abroad, create a business in a foreign country and vest ownership in an LLC, you can pay yourself a salary that matches the Foreign Earned Income Exclusion and pay no U.S. tax on it. Any profits above the salary can be retained by the LLC to be reinvested, with no U.S. tax unless and until those profits are distributed -the same trick big U.S. corporations use to minimize their taxes.

Many people are reluctant to get involved in offshore asset protection, thinking they don’t have enough to justify it. Wrong. For about $5,000 – often even less – you can set up an offshore LLC that will put your assets at the very back of the queue for any financial predator… including the IRS.

So here’s my prediction for 2016: Given the storm-clouds on the horizon, many of you will create an LLC in 2016. In my opinion, it’s the single most important asset protection step you can take.

Ted joined The Sovereign Investor Daily in 2013. As an expat who lived in South Africa for 25 years, Ted specializes in asset protection and international migration. Read more of what he has to say about offshore living here.

Article Source: http://EzineArticles.com/expert/Ted_Baumann/1964192

 

Mediation of Contentious Probate Disputes

Mediation is ideally suited to resolving contentious probate, contested Wills and inheritance disputes. Family members are frequently still grieving and Court proceedings will often cause rifts between parents and children and drive a wedge between siblings. This article considers the suitability of mediation in contentious probate claims and provides tips for improving the chance of settlement.

Contentious Probate and Mediation

Many different types of contentious probate disputes can arise. These can include disagreements concerning:

  • lack of testamentary capacity
  • lack of testamentary intention
  • lack of knowledge and approval
  • lack of due execution
  • undue influence
  • fraud and forgery
  • revocation
  • construction or interpretation of a Will
  • a failure to make adequate financial provision
  • disputes during the administration of estates

In mediation the parties to a dispute sit down with a trained, neutral third person (the mediator). A settlement is reached only if all of the parties agree to it.

Mediation permits a Claimant to sit in the same room as the other parties (often friends and relatives of the deceased, and perhaps also charitable beneficiaries). Mediation allows parties to fully air their grievances whilst trying to preserve family relationships, and can hasten settlement.

The Association of Contentious Trust and Probate Specialists (ACTAPS) Code for the resolution of trust and probate disputes endorses the use of mediation at an early state. Whilst the Code is voluntary, it is held in high regard by Judges and the Courts.

Mediation has many advantages over Court hearings:

  • costs – mediation is usually less expensive than going to Court;
  • speed – mediations can be arranged within days, in contrast to litigation;
  • mutually satisfactory outcomes – parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed upon them;
  • confidentiality – the mediation is confidential and unlike the Court process, there is no public record;
  • comprehensive and customised agreements – mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination;
  • preservation of a continuing relationship – a mediated settlement can often preserve a working relationship in ways that are not possible in the win/lose scenario of Court litigation; and
  • control – mediation is an entirely voluntary process. The parties are in control of the outcome.

The mediation may be the first occasion that a party’s barrister may meet his or her client. This will allow the solicitor and/or barrister an opportunity to assess how the party, and any other attending witnesses, may perform at trial if the claim does not settle. It also gives the party an opportunity to consider how their solicitor/barrister performs.

Claimants can expect:

1. To be asked whether they would like a joint opening session, whereby all of the parties, and their lawyers, meet with the mediator;

2. The process to take time with low offers at first.

3. To have to compromise;

4. To hear unfamiliar legal terms during the mediation. A party’s lawyer may wish to discuss this with their client prior to the mediation;

5. A Defendant may want to settle the whole claim, including costs at the mediation; and

6. If the dispute doesn’t settle at the mediation, or shortly afterwards, the matter is likely to reach a trial.

Good preparation can increase the chances of a settlement being reached at the mediation. Such preparation includes:

  • deciding what disclosure will be required;
  • considering if additional evidence will be needed;
  • undertaking a detailed risk analysis of the matter;
  • deciding whether a barrister is needed and if so, whether he or she should attend the mediation;
  • discussing with the Claimant what he or she would like to say, if anything;
  • considering who should attend with the Claimant. For instance, if family members are involved in the decision-making process, will they also be attending?;
  • considering the agreement to mediate;
  • preparing a position statement. Mark the position paper ‘For the purposes of mediation only. Without Prejudice and Confidential.’ Remember that a position paper is not the same as a Court skeleton argument and considering whether a further document should be prepared for the mediator’s eyes only;
  • considering the contents of any mediation bundle;
  • preparing a draft settlement agreement/Consent Order/Tomlin Order; and
  • preparing details of the costs.

Stephen Wood is an ADR Group Accredited Civil & Commercial Mediator and an ADR Group Accredited Workplace Mediator as well as a Consultant Litigation Solicitor. Stephen has worked in dispute resolution for over 15 years and combines sound commercial acumen with creative thinking and strong analytical skills. A good listener and an empathetic mediator, Stephen is alert to the personal and emotional issues which often need to be overcome to facilitate a successful long-term resolution to a dispute. Visit http://www.stephenwoodmediation.co.uk and contact Stephen Wood Mediation to discuss whether mediation could be suitable for your dispute.

Article Source: http://EzineArticles.com/expert/Stephen_P_Wood/2055323