Just to let you know that the Human Law blog has now moved to my firm's main website which is at https://www.human-law.co.uk/Blog/.
A very interesting book on mediation has been written by Linda Olden-Smithwho is based in Texas and has conducted more than 1,450 meditations.
I have dealt with her personally and found her effecient, humorous and lively, no bad feats to have as mediator.
She claims she has discovered that there is a crucial focus beyond personality and agenda where true enduring and satisfactory resolution is found.
She says that she saw that this focus is only the starting point and in addition to that there is a critical need for precision treatment application to the specific conflict cues that are revealed in this crucial focus.
She recognized that a more accurate perspective of what “resolution” actually is was needed as well.
Finally, sherealized that these profound principles and practice had to be presented in a way that was most approachable to the common man not just to the privileged and highly educated intellectual communities.
Why? Because at every level and everywhere in society today you can find some lay person and some trained mediators too, including family members, friends, co-workers, managers, clergy, teachers, psychologists, physicians, lawyers, judges and other professionals that may or may not have been trained in the current mediation approaches trying to apply earnest efforts to facilitate someone’s dispute and serve largely to interfere and not to productively intervene.
The book is certainly provocative and lively; Linda is right to home on intervention because frankly it is something so difficult to do. Either we are too scared to do it or we do it too clumsily when we do it.
It introduces the Thought Resolution Protocol which is trademarked and crucial keys interweaved in the book.
It also shows flair in that the book includes(helpful) Mediator Intevention Flash Cards which help with the intervention process.
A recommended read but not for the narrow-minded.
Some small business owners are being hit with lawsuits because they’ve failed to follow the correct statutory procedures when it comes to making employees redundant.
Small business insurer Hiscox says there has been a threefold rise in insurance claims during the last quarter from SME employers being sued by former workers for unfair dismissal. The firm says employers are leaving themselves exposed to significant claims.
According to Hiscox, the top three claims when it comes to redundancies are:
1. Failure to follow collective consultation procedures and obligations – necessary where 20 or more workers are at risk and are proposed to be made redundant within a 90 day period.
2. Employers not carrying out a fair and reasonable selection process - for example, not properly pooling people when choosing which people to make redundant.
3. Employers making people redundant where the reason does not genuinely relate to redundancy.
From my perspective a key variable in not working things out is in the inability to accurately read and understand the staff. It is not just the law but the way the staff are handled. These issues are covered in my firm's mediation services.
A brief mention of mediation in the Law Society Gazette.
"Personal injury mediation will gain in popularity as a result of the credit crunch, according to a leading provider.
Maurice Nichols, mediator and consultant to the Centre for Effective Dispute Resolution’s personal injury unit (PIU), said: ‘There are always two important drivers to personal injury litigation – the claimant wants to see an end to his case and get his compensation as quickly as possible – and solicitors’ cash flow as they are running a business.’ Today's economic climate ‘accentuates focus on both’, he said."
My view is that all this is correct and desirable but may be idealistic and may not actually reflect what happens on the ground.
At my firm, and our training we consider these are barriers to adoption of mediation within Personal Injury cases:
1 Application by judges of the Civil Procedure Rules. Essentially the judiciary is being too weak in pushing mediation with parties which they should be pushing with parties.
2 Resistance by parties for going to mediation. This stems from too much ignorance of mediation.
3 Resistance by lawyers to adoption of mediation.
Two of the most respected commentators on law publishing and technology, namely Nick Holmes and Delia Venables have recently published the Internet Newsletter for Lawyers and Law 2.0,
1. Nick Holmes looks at how law publishing is continuing to change in response to technological change and how it is now being pushed even further by global recession. How will law publishing develop over the next few years?
2. Helen Dewar of Leigh Day & Co. tells us how the implementation of an intranet at her firm was driven by the desire to move away from a paper copy of the office manual, a Word document that ran to several hundred pages and covered every aspect of the firm's professional life. She describes the key factors which lead to the success of an intranet project.
3. Jonathan Golden of Solnick LLP describes how the firm enhanced their profile by implementing the emplaw employment data base in their own website. This is a way of providing legal information for free, but then being in a good position to offer legal advice in the normal way.
4. Neil Addison of New Bailey Chambers looks at "fax to email" services - and finds them invaluable for people who do a lot of work away from their firm or chambers. He describes how the systems work.
5. Rob Hailstone of HIPAG describes the new HIP Regulations regarding the ending of the transitional arrangements. The new element is the Property Information Questionnaire and he considers what effect this will have on the buying and selling process.
6. Alison Bowker describes how Oxford University Press has made its first foray into online information for lawyers and legal researchers with the launch of new online services in International Law, Investment Claims and Public International Law.
7. Anthony Kinahan describes the new database of the opinions (judgments) of the Scottish courts in over 650 cases now provided by Scottish Council for Law Reporting.
8. Nick Holmes looks at the key elements in Richard Susskind's new book "The End of Lawyers?" Whilst some sorts of traditional legal service may die out, there are other opportunities for innovative lawyers to carve out a new (and enduring) role.
9. Gerald Newman helps chambers work out a strategy for e-marketing - most Bar websites are static brochures, with not much else on their site except a possible email newsletter. For chambers who really want to stand out, there are many ways to do this. (Many of these techniques work for firms' web sites as well).
I am subscriber of the above and well worth it as well.
To view my firm's resouces on mediation, click here.
As was reported in the Law Society Gazette last month, "Proposals for a regulation regime for mediation faltered last week when mediators told the Civil Mediation Council (CMC) they need more time to consider ‘ambitious’ plans.
However members of the organisation, which represents civil and commercial mediators, approved a scheme to register workplace mediators to meet the needs of the Department for Business, Enterprise and Regulatory Reform.
The scheme will go live early in the new year and be the first point of contact for people wanting to find a mediator under provisions in the new Employment Act
More radical proposals to introduce voluntary registration schemes for mediation organisations, mediators, codes of good practice and a complaints review body were not carried.
The proposals were not voted on, but the 80-strong meeting was agreed that the consultation period be extended to 31 January 2009. The amended proposals will be debated at a special meeting on 31 March. Members acknowledged the huge amount of time that had gone into drafting the reforms."
Regulation is a necessary step. There is too much at stake for the parties to avoid regulation. There is some good analysis over on the Mediator Magazine.
Hopefully more consulation can take place. Having looked at the proposals they do not appear unreasonable.
Ambrose Evans-Pritchard writes of conflict in the Euro zone:
"Workers are already rising up against the ruling socialists. An angry march by trade unions in Zaragoza on Sunday is the first shot across the bows.
As yet, no Spanish heavyweight has questioned the orthodoxy of EMU membership. That may change, as it is changing in Ireland. The euro system is starting to inflict very grave hardship on ordinary people. This is exactly what critics always feared. In the end, it will breed conflict. "
We need to question our own skills as lawyers in resolving disputes. Our clients should be less inclined to litigate because they cannot afford to do so. Can we sharpn our skills to resolve disputes sooner?
Interest in using mediation to resolve conflict at work continues to grow as HR professionals and business managers face the challenges of keeping staff motivated (if not happy) as well as satisfying shareholders desire for profits or growth.
Human Law Mediation is encouraged to see such interest but also concerned. Concerned that for those inexperienced in mediation mistakes could be made unless some of the finer details of mediation are understood.
I’ve written before (Mediation, not for the uninitiated) about the different skill sets required by mediators and lawyers when handling disputes and conflict but here I want to focus on two distinct forms of mediation – with some pointers on in what circumstances each should be used.
Mediation Before It Goes Legal
This form of mediation is used before the lawyers have got involved in the dispute and typically when there is still a prospect of the dispute being resolved and the working relationship continuing.
In this instance the role of the mediator crosses over with coaching and is seeking to get the disputing parties together so that the working relationship can be renewed. Essentially the mediator is steering things so that the working relationship does not completely break down and there is no need to instruct lawyers.
The role of the human resources officer is detached. They should not take sides.
The role of the mediator is quite subtle but potentially very creative, as the list of solutions on the table is massive.
The appeal for the organisation is that generally most solutions are non monetary which can result in significant savings on both legal fees and the costs of a pay out.
It also enables solutions to appear which can have a greater long term impact on the organisation and can lead to real changes in the working culture if the recommendations of the mediator are followed.
The benefit for the employee is that a solution can be found without them being forced to go through the stress of the grievance process and then ultimately to Employment Tribunal.
Jobs can be saved.
In my experience pre-legal mediation tends to present more long term solutions for an organisation than post-legal, with the mediator becoming a facilitator of long term change.
Although a more potentially appealing option than post-legal mediation it is used less often than you would expect.
Consider these questions to decide whether your dispute or workplace conflict could be handled in this way:
Is there any prospect that the working relationship can be saved?
Do you want both the disputing employees to stay?
Is there a financial reason to keep both the disputing employees working?
Are the employees willing to try a proven method of successfully resolving disputes?
Do wish you to avoid the prospect of expensive legal fees and having to search for a replacement?
This form of mediation is typically used when the relationship really does appear broken and the lawyers have got involved and maybe Employment Tribunal proceedings have been commenced.
From the mediator’s point of view the role is focused more often than not on deal making and agreeing financial settlements but also on the other potential solutions involved.
The role of the Human Resources professional is more biased and focused on reaching a solution for their organisation.
The key difference is that it is unlikely the parties will work together again and the role of the mediator is focused on negotiation and searching for solutions which enable the parties to walk away without incurring more legal fees and stress.
With the growth in the use of Judicial Mediation and mediation bound to increase mediation skills will rise in importance. Mediation is being promoted within Employment Tribunals and there is greater awareness of mediation particularly amongst human resource professionals.
You will not have the disputing parties being friends at the end as such but you do have the opportunity for both parties to avoid a lengthy process and maybe get an understanding of why the problems started and lessons to be learnt.
You will need to use post-legal mediation in the following circumstances:
Any employment dispute where there is a genuine willingness to settle and the costs in dispute are high enough to justify it.
Complex cases with at least two days projected for Tribunal hearing
Disputes where legal issues are not fundamentally in dispute
Cases where parties are afraid of going to Court and fear cross examination
Some interesting news on the ABA Journal.
As they write:
"A new magazine focused on women lawyers and their practices "Sue: For Women in Litigation" is set to debut in January.
The legal tabloid Above the Law first blogged about the magazine in August when it got hold of some of the publication's early focus group data. Back then, the magazine was toying with names. ATL devised a poll in which it asked its readers to vote on which proposed name was worst. "Trial Mama" won the reader poll.
But in the comments section of the post, one reader wrote in a suggestion, "Sue."
Turns out Chere Estrin, a paralegal administrator turned law firm staffing entrepreneur, was also reading. And she was inspired by anonymous commenter No. 33.
Estrin says the ATL attention, while embarrassing, turned out to be a valuable source of feedback.
Estrin hopes the magazine, which is set to come out six times a year in print and PDF downloadable format for a $49 annual subscription, serves a niche audience.
"We wanted something very fresh," Estrin says. "We wanted something that was a little lighter than some of the heavier issues.
Ambrose Evans Pritchard writes " We are beyond the extremes of the 1930s. The frontiers of monetary policy are being pushed to limits that may now test viability of paper currencies and modern central banking.
You cannot drop below zero. So what next if the credit markets refuse to thaw? Yes, Japan visited and survived this policy Hell during its lost decade, but that was a local affair in an otherwise booming global economy. It tells us nothing.
This time we are all going down together. There is no deus ex machina to lift us out. Certainly not China, which is the most vulnerable of all.....
Of course, Bernanke should not be let off the hook too lightly. Let us not forget that he was deeply complicit in creating the disaster we now face. He was cheerleader of Alan Greenspan’s easy-money stupidities from 2003-2006. He egged on debt debauchery.
It was he who provided the theoretical underpinnings of the Greenspan doctrine that one could safely ignore housing and stock bubbles because the Fed could simply “clean up afterwards”. Not so simply, it turns out.
As Bernanke said in his 2002 speech: “the best way to get out of trouble is not to get into it in the first place”. Too late now. "