HUMAN LAW MEDIATION

Do barristers help or hinder the mediation process?

An interesting piece in this week's Law Society Gazette:

"Only six out of the 21 FTSE-100 companies surveyed said their in-house lawyers had attended mediations as lead advocates without external lawyers, and even then on ‘larger, more complex disputes’ they would usually attend with external lawyers. Mediation was overwhelmingly reported as the ADR method of choice by respondents.

Barristers did not get such a positive response. A ‘significant number’ of respondents said having barristers present at the mediation ‘was more likely to lead to confrontational opening sessions and further polarisation of positions’.

But it is those law firms that have a proactive approach to ADR that get higher marks for client satisfaction with the process, according to the report. Many companies waited for their law firms to tell them whether they should turn to ADR or not, but judged their satisfaction on whether it had been suggested."

It is the discussion about barristers which has my attention.

It is always dangerous to generalise but whilst I have seen some barristers conduct themselves excellently as mediation advocates, too many in my view are over aggressive and frankly hostile to the mediation process.

They are too confrontational, too in your face, too willing to slam the other side, too prone to scupper the mediation and let it fall apart.

It is not necessarily what their solicitors and certainly their parties should want. Wake up!

Lawyers face the threat of disintermediation - How should they respond?

I am grateful to Nick Holmes of Binary Law who keeps me updated but consider this in the Times which represents the next instalment of Richard Susskind's book The End of Lawyers? 

"Lawyers, like the rest of humanity, face the threat of "disintermediation" (broadly, being cut out of some supply chain) by smart systems; and, as in other sectors, if they want to survive, their focus should be on re-intermediating — that is, on finding news ways of invaluably inserting themselves in supply chains. This will lead, I believe, to the emergence of what I call “legal hybrids”: individuals of multi-disciplinary background, whose training in law will have evolved and dovetail with a formal education in one or more other disciplines.

The formality is important. When most lawyers claim today that they are, say, project managers or counsellors, they are nothing of the sort. Too often they but dabble. They are dilettantes who have read an article or two and attended a few seminars or intense courses. We would not dare call someone a lawyer on the strength of similar schooling.

If lawyers want to re-invent themselves and carve out new multi-disciplinary roles that allow them to deliver new value, then their commitment to these neighbouring areas of expertise must be deep and our law schools should be gearing up accordingly. In this way, we will also formally be equipping lawyers of the future with the tools and knowledge to solve business problems and not just legal problems. "

The Wall Street Journal has an article on mediation

The Wall Street Journal has a piece on mediation. "Trading Dispute? Try Mediation."

Interesting analyis highlighting that in this case mediation is much quicker than arbitration.

"An investor with a gripe against her broker may, typically with the help of a lawyer, file an arbitration claim against the broker and/or the firm. But at any point in arbitration, either party can suggest mediation without interrupting the arbitration process.

If the parties agree to try it, they choose a mediator -- either someone from a Finra-provided list or another mediator they both trust. Selecting a date for a mediation session tends to go much faster than in arbitration, where the parties, three hearing panelists and expert witnesses all must find an acceptable date.

Indeed, mediation is much faster overall: So far this year, it took an average of almost 14 months for an arbitration claim to make its way through the system, Finra reports. Finra mediation cases during that period closed in an average of just over four months."

Are litigators like nuclear warheads?

This is rather dated post but consider this on What About Clients? which was written by Holden Oliver and particularly:

"Litigators are like nuclear warheads; everyone has to have them--but once you start using them, everything gets expensive and screwed up. Litigators know this better than anyone. Hull McGuire does commercial litigation, lots of it, and we love doing it. But even in the best of cases, no one ever "wins". Like war itself, commercial litigation is a last resort, and an inefficient way to resolve virtually any dispute."

In my view, more incentive to mediate particularly when the view point comes from such a respected law firm.

Is the hourly rate sustainable?

There is a lot of material floating in the legal press about the sustainability of the hourly rate and lawyers fees generally.

Essentially lawyers fees continue to rise against a background where many businesses are reducing their rates. Consider this in the Law Society Gazette:

"Two out of three in-house counsel would pay higher fees for high-value work if they were charged less for routine matters, according to research published this week.

The Commerce & Industry (C&I) Group and accountants BDO Stoy Hayward found that, as hourly rates continue to increase, in-house counsel are under greater pressure to cut the costs of legal services.

The research showed a growing dissatisfaction with the hourly billing model, with one major corporate complaining that firms often billed for time that required no legal expertise – such as chasing people for information. Some 94% of all respondents complained that hourly billing provided no certainty over final costs and 82% that it gave no incentive for firms to be quick and efficient.

Two-thirds of respondents had already tried alternative billing models, with 47% favouring a menu-style approach that mixed capped, conditional and fixed fees. The majority were also keen to see value and fees more closely aligned, although defining value remained problematic.

Deepak Malhotra, chairman of the C&I Group fees focus group and general counsel at InBev, said: ‘Value is about meeting the needs and expectations of customers – of in-house counsel. But it is a two-way process and we should recognise that billing and its correlation to value is just one aspect. Often value and fees are linked to the quality of instructions. When the needs of in-house counsel and private practice are closely aligned, there is a better platform to build mutual value. We need to understand what value means to one another before we can measure it.’

Richard Tapp, company secretary and director of legal services at Carillion, told the report: ‘Law firms find it difficult to contemplate charging less than they would on hourly rates, and they find it difficult to explore the corollary of that, which is that sometimes they would be able to charge more.’

One respondent was concerned that law firms ‘focus purely on chargeable hours and not on providing the service the client wants at an economical rate.’ Another said: ‘Law firms are disconnected from the commercial realities. Almost all commercial organisations are required to make year-on-year cost savings – apart from law firms, apparently.’

The C&I group and BDO are now aiming to bring together in-house counsel and law firms ‘to work together to produce a practical toolkit which can help shape a different and mutually beneficial dialogue on fees’."

My views -It is very nice to keep your head in the sand and many of us have an inherent fear of change but clients are looking for differing ways to seek value and ultimately they will get it. This is a challenge for all lawyers. The real danger is someone is going to come out of the blue with a new business model and whittle down fees. How should lawyers respond?  

Internet Newsletter for Lawyers & Law 2.0 is out now

The November/December 2007 issue of the Internet Newsletter for Lawyers & Law 2.0 is going out to subscribers now.

This is the first issue with the new extended  title, now including "Law 2.0", the legal  manifestation of "Web 2.0". This Newsletter has always been at the cutting edge of the internet  for lawyers and we intend to stay there!

If you do not subscribe, I strongly recommend you do so as it represents excellent value and frankly Delia Venables  & Nick Holmes are on top of their game.

Here are some of the stories covered in the November/December issue:

1. Nick Holmes provides a description of what Web  2.0 is all about. This is a "revision" article
for those who have already been following the  development of Web 2.0 and also an introductory
article for readers who are not yet up to speed  on this new(ish) topic. He describes the  collection of services making up Web 2.0, the  tools and techniques (and buzzwords) associated with it and the ways in which lawyers are already making use of the new interactive facilities it offers.

2. Patrick Overy of the European Documentation  Centre at the Law Library of the University of
Exeter describes the amazing amount of information now available on the Europa site. Whilst the information is all available on the  site, free to access, it takes some detailed  knowledge of the way the site is structure to find your way round it and Patrick gives us a  guided tour and points out the most useful areas.

3. Jan Durant, Director of IT at Lewis Silkin, describes the options which lawyers now have for
remote access and flexible working, including Blackberry's and Windows Mobiles (and the pros
and cons of each), Unified Messaging, Voice over Internet Protocol (VOIP), Outlook Web Access
(OWA), and Virtual Private Networks (VPN).

4. Lisa Burton of Legal Inc gives us an introduction to the Electronic Presentation of
Evidence (EPE) covering the types of cases and the courts where it is most used, the major
techniques available for presentation, the benefits in terms of both cost and clarity which it can bring, the limitations of the technology and the issues still  to be overcome.

Less fighting talk

This is an article below in the November edition of Director Magazine which deals with mediation in the workplace.

Director reaches individual company directors across a range of industries and company sizes. All readers are board level, with 42 per cent CEO/MD or chairperson level and 51 per cent other directors. They are entrepreneurial, influential and dynamic. Over 60 per cent of IoD members have under 200 employees within their company. There are also IoD members on 92 per cent of the boards listed in the FTSE 100. This means Director's strength lies in targeting SMEs but cannot be ignored if you want to influence board level decisions within UK blue chip companies.

Alison Coleman of Director writes:

"Conflict is part of British business life. It can stimulate innovation and healthy competition, but it can also destroy individuals and companies if it develops into open hostility.

But calling in the lawyers at the first sign of a problem is becoming a thing of the past, as directors, in growing numbers, embrace the concept of mediation.

The costs of litigation to business are huge, with lawyers' fees and court costs alone totalling around £33bn a year, not including the longer-term costs of bad feeling and lost goodwill that can be felt for years to come.

As an alternative method of dispute resolution, mediation has several advantages: it is cheaper, quicker and, in around 95 per cent of cases, it concludes with a satisfactory outcome for the parties involved.

Justin Patten, principal of Human Law Mediation, believes the idea is catching on in the UK, driven partly by a desire to avoid legal costs, but also by the courts themselves.

"The new rules introduced in April allow judges to issue court orders for litigants to consider mediation first," he explains. Patten argues that the benefits of mediation go far beyond nipping the threat of a lawsuit in the bud. When people have the chance to clear the air, they are often able to re-establish a productive working relationship.

"An employment dispute, for example, can be extremely damaging to a business, especially if it goes to a tribunal," he points out. "As a mediator, I have seen situations where the root cause of the problem has been something quite trivial that has been allowed to fester. Through mediation, it can be quickly and easily resolved, and everyone can move on."

But according to Frank Hanna, founder of The Mediation Agency, which operates out of offices on both sides of the Atlantic, not all directors have grasped the point. "You are entitled to bring legal representation," he says, "and unfortunately, a lot of organisations do, which, of course, incurs extra costs. The whole point of mediation is that you don't need to get lawyers involved."

The Centre for Effective Dispute Resolution, founded 18 years ago with the aim of cutting the costs of conflict, has seen the number of mediation cases rise. The centre's chief executive, Karl Mackie, says businesses are recognising how an independent facilitator can transform a legal problem into a commercial negotiation.

Although a new trend is emerging of anticipating conflict and learning to manage it, he feels executives still have a long way to go. "Better knowledge of how and when to act in conflict situations could keep  their businesses from derailing and keep profits on track," he says.
But Mackie is encouraged by the fact that more managers are recognising and understanding the "iceberg effect": that the built-up conflict hidden beneath the surface causes more damage than the open dispute."