Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Are you genuinely interested in settling?
Either party can try and settle at any time, as late as in the middle of the final hearing – I have had parties settling in the break of the final hearing. As you do not meet face to face at this stage any negotiation over a settlement would usually have to be done in writing. To approach the other party with the intention of settling you would have to initiate ‘without prejudice’ discussions, which basically means off the record. There is no specific format to do this as long as you mark any correspondence in relation to settlement negotiations as being ‘Without Prejudice’ – this is usually put in bold like a subject of the letter/email, so for example:
Smith v Jones
I am writing to raise the possibility of negotiating a settlement in relation to the above claim….”
So this is it basically, then in the correspondence you outline what you are willing to settle for and then you just wait for their reply.
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Costs are not easily awarded in the tribunal and you would really have to show that the other side had acted vexatiously or highly unreasonably or that they were pursuing something with very little prospects of success. Mediation and ADR are both voluntary so unless it was clear there was a very weak case which they had tried to continue defending anyway and incur further costs, their failure to agree to mediation is unlikely to allow you to oursue them for costs.
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