Hesketh Mediation Services » ADR

Gender bias in ADR

Philip Hesketh — Fri, 12 Mar 2010 13:46:51 +0000

Diane Levin and Victoria Pynchon have worked hard to gather in one place on mediate.com a list of articles posted in celebration of International Women’s Day which was on 8th March and Women’s History Month.

Follow the mediate.com link to see the articles.

ADR Group annual conference

Philip Hesketh — Fri, 11 Dec 2009 12:37:15 +0000

I had the pleasure of attending the ADR Group‘s annual conference in Oxford on 9th December. As well as the opportunity to catch up with fellow mediators from across the country we were treated to the usual high standard of speaker during the course of the afternoon.

Duncan Jarrett OBE former senior Hostage Negotiator with the Met Police delved into what commercial mediators can learn from front line hostage negotiators. He referred us to the excellent work of Dr Robert Cialdini, Influence : The Psychology of Persuasion. I read this book last year, it’s a fascinating read and helped me avoid buying a bottle of champagne at Tesco last week, but that’s another story.

Henry Brown, a founder of the Family Mediators Association, looked at a hybrid model of mediation reflecting a mix of family and commercial mediation practices. He referred us to the innovative work of Neil Robinson of the Mediation Centre. He discussed preliminary meetings with solicitors ahead of the mediation day, something I intend to come back to in a future post.

Bill Wood QC, a leading commercial mediator and engaging speaker reviewed the Farm Assist case from earlier this year. He also briefly discussed trends in mediation practice such as leaving the decision makers alone to discuss settlement towards the end of a mediation which is another issue I will revisit in a future post.

Colin Stutt of the Legal Services Commission gave an update on the Jackson Costs Review and I have discussed this in more detail on the Personal Injury Mediation Service.

Is Mediation compulsory?

Philip Hesketh — Thu, 12 Nov 2009 09:28:25 +0000

At the time of writing (and I will update this post if things change) mediation is not compulsory in civil and commercial disputes in England & Wales. However mediation and other forms of ADR are strongly encouraged in the following ways:

Solicitors have a professional duty to advise their clients about mediation and other alternatives to litigation.
The Pre-Action Protocols require parties to litigation to consider using mediation as a way of resolving their disputes.
The Civil Procedure Rules make it clear that the courts consider that litigation should be used as a last resort.
Courts have a duty to manage litigated cases and the duty includes encouraging the parties to use mediation to resolve disputes.
Under CPR 44.5 courts have the power to penalise in costs parties who failed to consider using mediation.
Senior judges have made speeches commending the use of mediation – see Lord Clarke’s comments here and my post should courts order mediation?.

What is ADR?

Philip Hesketh — Thu, 05 Nov 2009 10:26:00 +0000

ADR is shorthand for Alternative Dispute Resolution. What is it an alternative to? We are talking about any method of resolving a conflict or dispute which does not involve a judge making a ruling following an adversarial trial hearing. ADR therefore includes in no particular order :-

Negotiation (making part 36 offers to settle)
Mediation
Arbitration
Joint Settlement Meetings
Early Evaluation Procedures

I suppose the eigtheenth century practice of duelling was a form of ADR but no doubt to the disappointment of reality TV makers is no longer legal.

See What does the Pre-Action Protocol say about mediation? and What does the CPR say about mediation?

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