Mediation and the “f” word. By Phil Southall

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Mediation is commonly used to help settle commercial disputes, but in cases where there are allegations of fraud, there can often be a reluctance to mediate. Phil Southall, forensic consultant director for FAR Consulting, considers the implications of this trend for both parties and why mediation could still be an appropriate option.

Pursuing a case to trial is a lengthy and costly process. Legal fees can be significant, and the distraction caused by litigation which prevents management from running the business can represent a significant intangible cost to the parties involved. Last but not least, there is no guarantee that the case will go your way.

because of the high costs and significant uncertainty surrounding trials, parties frequently turn to to mediation or other methods...

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13th Jun 2007 19:36

Settling criminal cases by agreement

When I was starting out in criminal work I was told by a supposedly wise and experienced person that the difference between civil cases and criminal cases was that "civil cases settle by agreement and criminal cases don't". What rot!

My experience has shown that in the majority of criminal cases a settlement is reached without a full jury trial. Sometimes the prosecution realise their case is weak and discontinue it. More often a deal is struck by which the accused pleads guilty either to a lesser offence, or to some counts but not others, or to all the counts but with a limited degree of criminality. Usually this involves a written basis of plea, agreed by both sides, which sets out the facts which are admitted and the judge will then sentence on the basis only of those admitted facts (leaving other allegations to fall away).

Sometimes counsel will seek from the judge in advance his view on the basis of "If my client admitted to these facts what sentence would you impose?". The judge's response is then put to the accused so he knows what he is facing if he agrees a deal.

In confiscation cases (which make up a large part of my work) more often than not there is a fevered negotiation on the morning of the hearing followed by an agreed compromise which the judge will adopt.

There are good reasons for both sides to avoid the gamble of a full trial so, whilst it may not be pretty, a negotiated settlement is a practical way of dealing with a criminal case.


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