HUMAN LAW MEDIATION

Recommended blog - DivorceSolicitor

One of the best divorce blogs in existence is DivorceSolicitor written by Lynne Bastow of Bastows Solicitors. 

The author of this blog has a quite unique ability to cover issues relating to divorce and matrimonial breakdown in a moving, at times inspirational and often, a personal way. By way of example, her latest post on the unintended consequences of divorce is typical of the holistic way she writes.

"Regardless of their age, disposition or gender your children will be hurt and they will be hurt...........forever. In her excellent book, Claire Berman points out that the pain and emptiness that children feel continues into adult life. Death, by contrast, is final.

Recent research into the impact of divorce on adult children of divorce suggests that divorce is the preferred option in abusive relationships but it still impacts badly on children's ability to form relationships in adult life and on their self esteem and achievement. Divorce may be the preferred option but it is still not a good one.

It throws a whole new light on the "staying together for the sake of the children argument". Accepting the collateral damage on your children in order to escape an abusive relationship is one thing, divorcing because you are bored is another..."

IMPACT hit Charon QC podcast

Congratulations to my co-authors of the book on blogging which we are writing, namely Andrew Mills and Alex Newson of the respected IMPACT blog who have been interviewed by Charon QC for his latest podcast. Andrew and Alex work for Freeth Cartwright in the East Midlands and are key members of their IP team. 

The dangers of letting rip in an opening mediation session

UK Commercial Mediator, Jon Lang writes in  his excellent book "A Practical Guide to Mediation in Intellectual Property, Technology & Related Disputes" the following:

"Parties need to think about how their presentation will be received….. It may be cathartic to let rip, but the people on the receiving end will close their ears the most, if not all what comes next. They will have all but walked out of the mediation. In fact they may actually walk out. Every pre-conception, every negative thought everything that is held against the party uttering those cathartic words, will be reinforced and validated, and entrenchment is likely to follow.”

Should lawyers and their clients be forced to mediate?

This was a piece in last month's Law Society Gazette which explored the theme of forcing parties to mediate.

"District judges and masters at London’s commercial courts should be given the chance to force parties to mediate before they are allowed to come to court to see if the idea would work, a law lord has said.

Speaking at the first anniversary of the Mayor’s and City of London Court’s mediation pilot, Lord Neuberger, who was promoted from the Court of Appeal in January this year, said he thought a mediation scheme giving ‘the right of a district judge to order mediation seems to me something worth considering’. He said masters and district judges were vital in moving cases to mediation.

Commercial litigation should benefit from such a move, according to Seamus Smyth, head of litigation at City firm Carter Lemon Camerons. ‘Broadly, I’m in favour of vesting in district judges and masters the power to impose mediation, because of the potential benefits.’ Mediation produces surprising successes that might not happen without some encouragement, Mr Smyth said, but he added that there should be no adverse consequences if the mediation fails.

Compulsion will not be a wholly popular move, however. Richard Stephens, mediator and legal consultant, said mediation is ‘good and valuable’ but it should not be used to save an ailing system. ‘I’m not sure litigants would like to be told that they must use mediation because the court system is creaking at the seams,’ he said.

Though the Mayor’s and City of London Court’s voluntary mediation pilot has been hailed because of a quoted 82% success rate, this achievement is being judged on only 17 cases mediated over the course of a year.

Jeremy Ferguson, chairman of the mediation committee at Devon and Exeter Law Society, which also runs a small claims mediation pilot, said some reports have found that success rates drop when an element of compulsion is introduced. ‘That doesn’t invalidate a pilot,’ he said."

My view - I think there is a real danger in forcing parties to mediate because for some people justice involves having a 3rd party ruling in their favour - If you order mediation, are you not denying someone their fundamental right bearing in mind the pressure which some mediators can apply on parties?

Mediation has real benefits for parties but it is no panacea and should not be applied in every case.   

Book Review of International Mediation -The Art of Business Diplomacy by Eileen Carroll & Karl Mackie

Book Review of International Mediation – The Art of Business Diplomacy by Eileen Carroll & Karl Mackie.

The authors Eileen Carroll & Dr Karl Mackie hardly need an introduction due to their contribution to the work of CEDR and within the mediation field. The need for a book about international mediation is illustrated by the growth of globalisation where business is bound to be conducted over a series of borders and cultural misunderstandings can result.

As the authors write “In international disputes, problems are compounded by geographical and cultural distance, different cultural understandings, political interferences, changing commercial agendas and many other potential hazards that can “drive” on our metaphoric bridge.”

For mediators it is heartening that the field of mediation is still in a growth stage and as Carroll and Mackie point out with the transformation of the global, commercial, legal and political structures and traffic this will prove to be one of the great management and social challenges of the 21st century with conflict systems playing a small yet vital ingredient. The need for mediators and for mediation skills is compelling.

What are the key strengths of the book?

What I liked most about the book was the authors’ display of knowledge regarding the mediation process and their practical use of the information which they hand out. This comes to the fore when the authors provide guidance on the legal and procedural issues which need to be considered when advising on the use of mediation as a tool for resolution of international disputes. For example useful guidance will be given to the practitioner that smaller focused teams are more effective than larger ones and the importance of having the decision maker present at the mediation. With respect to involvement of advisors as they observe “….. if there is lot of value in the dispute or an important contract interpretation, or when commercial principals want additional advice on the likely result of going to court or arbitration, early external advice may be advisable in order to decide on a negotiating position.”

Highlighting the iceberg costs of litigation, the authors can show the benefits of their senior role in CEDR such as the hidden costs of conflict which highlights the core problem of the accounting approach to litigation. Such costs include lost customers, damage to business relationships, missed opportunities or diversion of management time.

Clearly lawyers and their clients need to put this into consideration when asking if it is in their interests for clients to pursue cases. Legal costs are significant but they are not the only costs in pursuing litigation.

The chapter on six steps to mediation settlement – is a real strength of the book where it explores the negotiation dance and the different phases of how a settlement is reached. The authors are right to emphasise that in the private session it is the role of the mediator to establish the power balances within the group.

As a mediator one of the primary difficulties I have faced is how to balance my facilitation role with a need for the parties to see sense but without antagonising them. Carroll and Mackie are right that the least helpful technique in many cases is for the mediator to give a view about the case and mediators are there primarily to help techniques to re-evaluate the merits and negotiations on them.

With respect to structure, the book contains the following chapters:

• The Potential For International Mediation in Business Conflicts
• Breaking Deadlock – The Power of Mediation
• The Decision To Mediate – How to get started
• “Form and Flexibility” – The Mediation Framework
• Preparing For Success in Mediated Negotiations
• Steps to Settlement: The Negotiating Dance
• Achieving and Implementing Mediation Settlements
• The Challenges and Alternatives to Mediation
• Forging Leadership in International Mediation
• Diplomacy at the Heart of Business

Part 2 contains a section on dealing with cases and materials in International Mediation.

Also some very good support with diagrams which are featured in the book are useful in providing support and explanation.

Recommendations? I felt structure could have been cleaner. By way of example (useful) quotations used at the beginning of chapters 1 and 2 made similar points about control of the mediation process. Chapters 1, 2 & 4 contained some material on the benefits of mediation where this could all has been dealt with in one go.

Sharper planning would have avoided this and perhaps ensured less repetition.

Also I would have preferred to see more detail about how mediation is used in different countries such as different models and forms and also more information on the law of some of the key countries.

Nevertheless overall the book has been of much use as I seek to develop my knowledge within this field and is a recommended read due to the sheer depth of knowledge communicated by the authors in a relatively succinct way.

The problems of legal costs in Employment Tribunals - Do you want to go down the Part 36 route?

Alex Lock, partner at Beachcroft law firm in Bristol and editor of the Employment Lawyers Association Briefing journal has a piece published in this week's Law Society Gazette.

Some of the key extracts include - "There has been much talk in employment law circles over the past few months about two related issues: access to justice and reform of the tribunal."

Lawyers dealing with tribunal claims are expected to be up to date on the law, deal with complex issues of disclosure and fact, and arrive fully armed with written statements, agreed bundles, chronologies, lists of issues and agreed facts and skeleton arguments. Hearings are often several days or weeks long and are usually preceded by case-management discussions or pre-hearing reviews. All of this results in considerable cost: simple one-day cases may generate costs of £10,000, and complex cases considerably more.

At present, both parties, in general, bear their own costs. The employee who has been unfairly dismissed and rightly seeks redress in the form of compensation for his losses must meet the costs of doing so himself. Similarly, the employer wrongly accused of unlawfully discriminating against an employee will find himself put to considerable cost in proving he has done nothing wrong.

A grown-up debate means recognising that law and dispute resolution requires investment. Parties should, of course, be encouraged to settle their disputes without the need for a court or tribunal hearing. In this age of reform, I propose that the tribunal introduce a part 36-type arrangement where costs are awarded if the offer made (by either party) is not beaten at a hearing. This would provide a positive encouragement to explore settlement and would fairly apportion costs if the case required a hearing."

I am inclined to agree with Alex Lock - Do you?

Mediation is coming to the Employment spectrum but are the lawyers ready?

The recent Budget was the catalyst for the publication of the Gibbons review on Employment Tribunals which concluded that workplace dispute resolution procedures are not working.

The Gibbon review has called for an end to the 2004 Dispute Resolution Regulations and has recommended that a free system of resolution and mediation be made available in cases where early resolution may be possible.   Courts are likely to reduce awards in cases where mediation isn’t considered.  The era of mediation has arrived.

Working with law firms Human Law Mediation has uncovered a disturbing truth: many aren’t prepared for this new era.  In all their years of professional development, lawyers are not trained in mediation skills and some fail to understand the different style required to get the best result from mediation.

Luckily help is at hand.  We have designed a training course for solicitors, especially suited to employment and litigation lawyers, to address this shortfall.

Making Mediation Work is a half-day in-house training session for lawyers provided by Human Law Mediation.  It will equip lawyers with the knowledge they need to get the best results from mediation

Delegates will learn:

· How mediation fits into the ADR arena and why it’s different from conciliation and arbitration
· When to use and avoid mediation
· How to conduct a mediation
· Why there’s a need for a balance between strength and aggression
· How to preparing for mediation – for the client, the legal team and how the mediator will prepare
· Do’s and don’t of mediation
· The top 5 secrets of the mediator
· A mediation ‘Game Plan’ you can use over and over again

This course has been designed to be delivered in-house for legal teams or whole departments.  All delegates will be able to claim CPD (3 hours) and will receive a full set of training notes for future reference.  The course is priced at £1,250 plus VAT for up to 12 delegates.

For further details, please contact me via email at justin(at)human-law(dot)co(dot)uk.

The death of the 4 bedroom house - Lawyers shove the boot into Government over HIPs

As most of my UK readers are aware the controversial HIP scheme has been postponed indefinitely for all homes except those with four bedrooms or more with the Government announcement on Tuesday.

This of course has now created another series of problems for the Government which the legal profession has been quite quick to recognise.

As the Telegraph writes, "Estate agents said that they would be recommending all sellers of four bedroom houses to re-market their homes as three-bedroom properties with an extra study or reception room. This would allow them to avoid paying for a £600 pack and save the time tracking down one of the few qualified inspectors.

Most experts agreed that it was perfectly legal to take this approach.

David Marsden, the head of the property department at law firm Matthew Arnold and Baldwin, said that there was no official definition of a bedroom. He said: "We will start seeing three-bedroom houses advertised with a dining room on the first floor and an upstairs lounge - and 'oh dear, we just seem to be storing a bed in there'. Some poor civil servant will be in charge of redrawing the regulations on what constitutes a four-bedroom house, but it may be a long while before we know."

The good old Law Society could not resist getting involved as well as the exchange below illustrates.

A spokesman at the Department for Communities and Local Government, responsible for HIPs, said: "Do you seriously believe that a seller would devalue their property by saying it has fewer rooms just to avoid paying for a HIP?" He pointed out that the average three-bed house sold for £193,000 last year compared to £311,000 for four-beds.

Paul Marsh, the vice-president of the Law Society, said: "The department has lost touch with reality. Of course that's what people will do."

Here is a taster for the video on mediation with the Legal Practitioner

Further to one my posts yesterday about my work with the Legal Practitioner, I am pleased to say that a taster mediation video are up here and here for the mediation video in Quicktime or Windows format.

Charon QC has also done a post on this now.

Does ADR undermine the rule of law?

This is a great post over on Diane Levin's blog about mediation together with a strong comment as well from China Law Blog.

She writes "I have written critically before of ADR's two-edged nature and encouraged my fellow ADR practitioners to consider with care their responsibility to the public and to our institutions of justice.

Of course we as a profession should ask ourselves these kind of questions. Does ADR undermine the rule of law? If justice is the end, is ADR the best means?"

China Law Blog weighs in "Great question. Never thought of it until now. I always tell my clients the mediator does not care if you walk away with a million or zero, he just wants the parties to settle. Am I wrong in this?

Here's another concern I have with mediation: it has become so prevalent and so automatic that lawyers under the age of 40 cannot even envision even trying to settle a case without mediation."

My thought - Whilst I believe in mediation and what it does to settle disputes, we are right to ask ourselves these questions as well. Like nearly everything it is no panacea and not without weaknesses nor ethical issues. We should explore this as well.