HUMAN LAW MEDIATION

Legalternatives promotes pro bono legal work

Legalternatives is a a site which helps people within the law find pro bono legal work.

Whether you are

- a law student, studying your BVC / LPC
- a graduate looking for opportunities to gain legal experience & skills
- an in-house lawyer looking to get involved with your local community

Legalternatives can help.

It offers a searchable database of pro bono placements and internships: find full and part-time opportunities across the country suitable for your level and experience. View feedback from former volunteers: if you want to find out more about the work involved at a particular organisation, find feedback from people who have already worked there.

Best of luck to Rebecca Greenhalgh who is running the site. This is a noble cause and worthy of support.

Are lawyers giving mediations the wrong kind of preparation?

Currently I am researching the preparation of a training course for lawyers on mediation and how to conduct them.

Some of the feedback I am receiving from experienced lawyers is very interesting.

A particular point which is coming up is that some lawyers whilst preparing for the mediation are focusing exclusively on the law and not thinking about the other elements of the conduct of the mediation.

This can manifest in lawyers neglecting to think of  the following:

• How their opening statements in mediations are received from the other side -( Too personally aggressive and it may upset the other side too much and reduce the chance of a settlement)
• To think of commercial solutions(beyond the law) which can enhance the chance of a settlement being reached - Mediation is a negotiation and effectively a strength of the process is that a broad solution can be reached which a judge cannot necessarily provide
• How their clients need to conduct themselves in the mediation and how much should be given away at an early stage of the mediation. If you reveal something too early to the mediator, it may subconsciously influence the mediator in what they think one party will settle for. 

The result of lawyers thinking just about the law(which is still an important part of the mediation) is that they may be selling their clients short or scuppering the chances of cases being settled.      

Personnel Today has an article of mine on mediation

Personnel Today is the HR profession's news magazine. It is the first and only weekly publication serving the human resources market. Published every Tuesday, it is delivered to the workplace of more than 50,000 HR and training professionals.

Consider this article of mine in which has just been published in Personnel Today on Mediation in the Workplace.  The article is entitled "Dispute Resolution:Mediation will be the best way forward."

Are lawyers ready to embrace the concept of litigation avoidance?

I have just attended the Online Dispute Forum in Liverpool where key note speaker Richard Susskind gave a great deal of emphasis to the concept of Litigation Avoidance and the challenge  to build dispute resolution systems for avoiding problems in the first place.

Against this background, consider this article in the Telegraph about serial entrepreneur, Chris Gorman who was involved in 2006 in a high profile litigation pertaining to the company, Gadget Shop. 

"A year on, the Gadget Shop wounds aren't quite so raw. Gorman and business partner Tom Hunter were accused in the High Court of "stealing" the Birthdays card and gift shop chain from under the noses of fellow Gadget shareholders, UBS trader Jon Wood and Peter Wilkinson, by buying it for themselves.

They won the case but none of the four emerged with much credit from a public ordeal which, like the business relationship between the four, descended into an unedifying spectacle of personal mud-slinging. Accusations of heavy boozing, table-top dancing in Mediterranean resorts and grown men crying in board meetings made the case a great spectacle but a bruising personal experience for those concerned......."

and

"Actually Gorman has two regrets about the whole affair. With hindsight an early fractious board meeting should have told him all he needed to know about his relationship with his business partners. "I made a mistake not recognising the signs early on and just walking away. I should have realised it's never going to work if you can fall out that badly with people. It was very messy."

His second regret is the enormous cost of washing dirty linen in the High Court. "At the time of the court case I was organizing the Live8 concert in Edinburgh. My biggest frustration was that there was £10m costs between the four parties. No one gained anything from it. Think what the money could have done for charity."

Some points:

Do not get me wrong. Litigation is and for the foreseeable future will be a necessary step for many firms but it should be a point of last resort than a 1st point of call. The key question to ask here is whether there was an alternative to litigation.( I think Gorman indicates there was.)

One of the real problem of litigation is that it is often a public forum and can as it has been in this case, damaging from a PR perspective.

Are lawyers really ready to embrace litigation avoidance? I wonder if the lawyers most likely to see the benefits of this will be the in-house lawyers who may be more aligned to the commercial needs of their firm than those lawyers in private practice.       

Introducing Lawyers for Change

Lawyers For Change is a  project lead by Maitland Kalton of Kaltons which based in London.

As the introduction states: "Our vision is of a profession that really makes a difference in society, that makes a stand for forging relationships (whether business or personal), that heals wounds and brings wisdom and experience that makes us indispensable in all sectors of society: lawyers offering solutions rather than problems, getting people to be responsible rather than full of blame. In this way, our clients and society will experience us as contributors and our potential will be fulfilled."

For those seeking inspiration in the legal profession, it is certainly worth a look.

Overall is a not-for-profit organization currently consisting of individual supporters pending incorporation as a “company limited by guarantee”, a vehicle often employed by not-for-profit and charitable organizations.

The supporters are a rich mixture of lawyers (solicitors, barristers, attorneys-at-law, legal executives, paralegals, trade mark attorneys, trainees, law students, etc) and clients of all disciplines and other people interested in having effective lawyers and laws (such as management consultants, accountants, legal recruitment specialists, training specialists, life coaches, etc).

In-house lawyers turn to early dispute resolution

My friend Diane Levin and author of the excellent blog, Online Guide To Mediation has a great post highlighting the trend for in-house lawyers to use ADR including, mediation. As she writes:

" Mark LeHocky, general counsel at Dreyer's Grand Ice Cream, advocates the use of early dispute resolution to keep costs down and prevent disputes from, in his words, "metastasizing". As LeHocky explains,

...Litigation costs typically account for the biggest portion of expenditures that companies spend on outside counsel. And the proper management of disputes is in turn the biggest cost control opportunity most companies have before them...

... I actively pursue a package of early dispute resolution tools -- starting with a disciplined internal review process and the use of mediation and other ADR devices regardless of the perceived strengths and weaknesses of the positions of each dispute matter. I have served as a mediator for the federal courts for 10 years -- one of my few pro bono activities now that my kids are grown up enough that I can stop coaching soccer teams. That experience, together with my background in private practice, has transformed my thinking about how disputes arise and, more importantly, how they grow and metastasize unnecessarily.

More often than not, disputes go on longer than they should and become bigger than they need to be due to misunderstandings as to facts as much as legal issues. Sorting those items out as soon as possible is the best for everyone concerned and helps to avoid the unnecessary buildup of litigation fees and other costs. That doesn't mean we don't litigate. We do so when the situation warrants and we use the best and the brightest lawyers. But that happens only after we have pursued the early dispute resolution path in rigorous fashion."

Don't mediate too soon

As a firm believer in mediation, you may think I would believe that you should mediate early in a case every time.

Well think again.

Consider Geoff Sharp's post here. As he writes "Most clauses, and there are hundreds of versions, are drafted on the premise that the dispute should get to mediation sooner rather than later. Definitely before any arbitration/court proceedings are started.

Some are multi layered; 1) first negotiate, 2) move on to mediate, 3) then arbitrate or litigate as a last resort.

Many have strict time frames, often measured in days, so one side can force the selection of a mediator and convene the mediation within a nano second of the dispute occurring.

But, these clauses are pushing people through the doors of the mediation room too soon... before the dispute is mature, before the raw edges have been knocked off.

They come to the table without adequately defining to themselves, and each other, what the dispute is all about - upon what it is they agree and disagree, without adequate document exchange and to be honest without adequately spending time wallowing in the conflict and all that it brings with it."

The threat to commercial litigation and the growth of mediation in England & Wales

This is a recent article in the Law Society Gazette by Rupert White which highlights the threat to commercial litigation in England and Wales.

As Rupert writes, the appeal of England and Wales as an international venue for commercial litigation could be damaged by Courts Service plans to introduce daily hearing fees, solicitors have warned.

At the same time, a consultation paper issued this week unveiled proposals to means test civil court fee concessions on a sliding scale, bringing exemptions to up to half a million more households.

The Courts Service’s proposals include a plan to pilot daily hearing fees in one or more of the Commercial, Admiralty, Technology and Construction, Patents Court and Chancery Division jurisdictions, ‘probably’ in 2008.

But Tony Guise, chairman of the Commercial Litigation Association, slammed the plans as bad for business. ‘Increasing costs and gross under-investment send a discouraging message about this government’s failure to develop the courts, which attract billions of pounds of invisible earnings to this country,’ he said. ‘There should be no further increase in fees without increased investment in our courts.’

Simon Davis, president of the London Solicitors Litigation Association, agreed that there is an ‘obvious risk’ that introducing daily hearing fees ‘will play into the hands of those seeking to promote overseas jurisdictions rather than English courts’.

Mediation also gets a mention as well with the court reducing or refunding fees if mediation settles cases, as well as the use of electronic systems such as Money Claim Online by cutting fees.

Small claims will, under the proposals, now cost money to bring no matter their value, but they will also be fee-free if settled by other means.

Law Society President Fiona Woolf said the Society is ‘pleased’ proposals are being made to improve fee remission, but ‘fee increases place an unfair burden on people on low and middle incomes in society’.

She added: ‘Courts provide an important public service and a greater proportion of the cost of running the courts should be met from general taxation.’

Charon QC interviews Nick Jarrett-Kerr

Charon QC continues the podcasts with Nick Jarrett-Kerr, formerly managing partner of Bevan Ashford and partner at Kerma Partners.

Nick is one of the leading UK advisers to law firms on leadership, management and strategy. He was a founder member of The Law Society’s Law Management Section and served as Chairman for two years and he has a special interest is law firm governance, partnership performance criteria and partner development.

I have met Nick and he is really a top notch consultant and this comes through in the podcast. 

This is high end stuff and I would recommend all partners in law firms listen to this. Charon asks deceptively simple questions and the answers are very insightful and really relevant to law firm management in these competitive times.

The start begins with Charon asking what does a management partner do?

Nick gives a three fold answer namely cash, overall vision and ensures that the firm punches its weight in the market place.

Nick indicates that managing partners are "not so at good at management activities" and observes that the "softer stuff does not get so valued" but as Nick alludes to, one of the ways around is that very important management tasks in given in "bite sized chunks"

Great stuff and Charon & Nick explore about if management partners can be good rainmakers and about the issue of human capital management in law firms.

Charon even manages get Nick to make a reference to Rioja. Cheers Charon.

Memo to clients - What are the iceberg costs of litigation?

As a lawyer when you are advising a client on litigation, you should advise the client of the possible level of legal costs in taking the matter to the conclusion.

However a corporate client will have several other costs to factor which I describe as "iceberg costs."

Typically these impact on management time with CEDR estimating in 2006 that cost of conflict to UK business to be exceeding £30 bn a year.

These include:

• Damage to company reputation of litigation
• Loss of customers
• Damage to Company morale
• Missed opportunities and diversion of management time   

In my view it is these costs rather than the pure legal costs which give incentive to mediate and give the case to think about mediation.