I am delighted to welcome Arlene McCarthy MEP for the North West Region as my guest blogger this week. Arlene writes:

On 13th September 2011, the Parliament adopted my report on the implementation of the Mediation Directive.  The aim of the report was to assess the impact of the 2008 Directive in the Member States, and examine how it had been implemented.

The Legal Affairs committee considered the opinion of both practitioners and users of mediation whilst compiling the report, in addition to identifying how the Directive could be improved, paying particular attention to its scope, confidentiality agreements, enforceability, incentives and the idea of mandatory mediation.

The adoption of the report signalled the European Parliament’s approval of the infringement proceedings against 9 Member States, initiated by the European Commission, who have failed to meet the 21st May 2011 implementation deadline.

It is important that the UK and all Member States conclude the implementation process as soon as possible in order to reap the financial benefits.  In the UK, litigation worth 200,000 Euros takes around 333 days to solve via the courts, and costs an average of 51,000 Euros.  In contrast, mediation would take around 87 days and cost only a fraction of the price, at roughly 9,000 Euros.

However, the time and monetary benefits of mediation are not the only important aspects that should be considered.  Whilst the 2008 Directive only relates to civil and commercial cross-border matters, it is also important to recognise the benefits that mediation can bring to family disputes – in both domestic and cross-border cases.

Mediation allows the parties involved greater control over the process, what issues are discussed and, of course, the final outcome, partly because they are far less dependant on factors such as court timetables, lawyers’ availability or cost restraints.  This can result in the preservation of a relationship, which might otherwise deteriorate due to a number of reasons associated with court cases, primarily heavy financial burdens.

By voting in favour of this report by a massive majority, the Parliament has sent a clear message to Member States:  we want governments to assist their citizens in making use of mediation systems, and establish mediation procedures to bring an end to expensive court cases.

We are now looking forward to the Commission’s legislative proposals on Alternative Dispute Resolution, the first of which is foreseen for the last quarter of the year, as well as the Commission communication on the implementation of the mediation Directive, scheduled for 2013.

I hope that my report will provide helpful input so that we can better serve our citizens with an affordable and efficient system for access to justice across the EU.

 Many thanks to Arlene. If you would like to guest blog for me drop me an email.

Following its consultation on resolving disputes in the workplace the government is “even more convinced about the role that mediation can play, as one of the forms of early dispute resolution.” In its response to the consultation the Department for Business Skills and Innovation said a substantial growth of mediation has the potential for a major and dramatic shift in the culture of employment relations.

The Benefits:

• A reduced number of employment tribunals;
• Reduced fear of tribunals amongst employers;
• Improved business confidence about job creation.

The Aims:

• Long term reform to create a new approach to resolving workplace disputes so that mediation becomes a more accepted and trusted part of the process.
• Work with the private sector as part of ‘Every Business Commits‘ to address the lack of familiarity with mediation.
• Give businesses, particularly SMEs and Micros, access to low-cost, low-risk mediation as a workplace dispute resolution tool.

The Proposals:

• Launch a major pilot with the retail industry (an early adopter of mediation) to share their mediation skills with SMEs and Micros in their supply chain in a way that improves the quality of the in-house scheme and the relationships with suppliers.
• Implement an area wide approach to developing mediation networks in particular geographical areas. Fund mediation training to selected candidates from SMEs and Micros through a regional training scheme. These new mediators will provide low-cost mediation to other organisations in their network. A regional pilot will introduce the scheme.

The government has declared it will continue to work with the mediation industry to embed mediation in the resolution of workplace disputes.

What do you think about the proposals? Add a comment below.

What’s your story?

Have you been to see a solicitor recently about a non-matrimonial legal dispute?

What advice did your solicitor give you about alternatives to going to court such as mediation? Please a comment below about your experience.

Why?

Because the government thinks not enough solicitors are complying with their professional duty to advise about alternatives to trial – see Outcome 1.12 in the new Solicitors’ Code of Conduct. This belief is reflected in the proposal to introduce mediation information sessions where court litigants have to see a mediator for information about the process before they can go to trial.

It will be interesting to see what your experience is so please comment below. Thanks.

If you were waiting eagerly for the government’s response to the Settling Disputes in the County Court consultation paper then you’ll have to wait a while longer. It has been put back from the end of October date – no idea if the postponement is related to Mr Djanogly having his referral fee duties removed.

Anyway people have been lining up to say what a bad idea mandatory mediation would be. Lord Neuberger gave a vigorous defence of the right to resort to the courts in a speech last March. He said;

The only way the party in the right can get what he deserves, can vindicate his rights, is to go to court, and any civilized system should ensure that he is able to do so.

Mr Justice Ramsey speaking at the CIArb’s Mediation Symposium this month argued that introducing mandatory mediation would be unwise, stating that “the essence of mediation is that it should be voluntary“.

Speaking at the same event Professor Dame Hazel Genn says that the drive by the government towards mediation is diverting attention away from the cutbacks to the funding of the civil justice system. She is quoted as saying that “Mediation may be about access, but it is not about justice” and that although mediators facilitate settlement they do not provide access to justice.

Here’s what I think:

1. I agree with Lord Neuberger – without the threat of the litigation stick what’s the point of settling any claim against you?
2. Of course the government is only interested in mediation because it thinks promoting it will save them money.
3. Yes the essence of mediation is that it is voluntary.

That’s why – much though I may benefit from it financially – I am against mandatory mediation. The crazy thing about the proposals for mediation information sessions and the like is that everything is already in place – solicitors are obliged to inform clients about ADR and judges are obliged to ensure it is used where appropriate. You don’t need new schemes, you need to use the existing ones.

A huge thanks to every one who took part in my short survey on personal injury mediation. I offered three lucky particpants the reward of a muffin (your choice of flavour). Well, the excitment was incredible as my youngest pulled the names out of the hat (he’s only 15 months old so we had a couple of false starts). Without any further ado and in no particular order the winners were:

• Alex Burley of Towns Needham, Manchester (Blueberry)
• Adam Penn of Ansons LLP, Cannock (Triple Chunky Chocolate)
• Helen Gough of Wards Solicitors, Bristol (Triple Chunky Chocolate)

My colleague mediator Tim Wallis, has written an interesting article Mediation fist fights and other surprises for the Personal Injury Brief Update Law Journal. I think you have to register with the site to read the article which you can do following the link above. To find the article go to the September 2011 edition and scroll down to the Mediation and ADR articles.

Tim has listed 13 examples of unexpected events which have caused problems at mediation – obviously I won’t repeat them here. My contribution to the article was the example of people turning up to a mediation whom the other side were not expecting. I had a couple of difficult cases back-to-back where this happened. You end up mediating the question of who can attend even before the mediation can start.

Many of the surprises are not deliberate attempts to ambush the other side but rather come about through a lack of preparation. I’d like to hear from you if you have been to a mediation where the other side has done something unexpected and how that impacted on the negotiations – add your comment below.

Sorry, just one, not the whole hamper!

Win a muffin!

Hi, thanks for visiting and taking part in this survey about personal injury mediation in the UK.

The survey ends on 14th October 2011 after which I’ll put the names of each respondent in a hat and get my 15 month old son to draw three out at random – the lucky winners will each receive a muffin by way of thanks for your time.

Survey now closed – thank you.

No mediators do not decide cases.

That was a succinct answer but my editor wants more! It is a common misunderstanding that mediators make a decision on a case at the end of a mediation – like a judge. The misconception is present among solicitors and lay clients alike. A solicitor friend asked me once if I had to give written reasons for my decisions. On another occasion I was speaking to client on the phone before the mediation – I always tell solicitors to invite their clients to call me before the day so that they can ask me any questions about the process and make sure they know what to expect. This particular client asked me if they would find out my decision on the day!

The latter incident reflected badly on the firm she was instructing. Think about the service being provided to the client. The mediation was costing her half of my fee plus counsel’s fee plus her own solicitors fee – a not insignificant amount. She had been sold all that without any real understanding of what she was buying. Not good. At the end of the call she told me how pleased she was to have had the opportunity to talk to me and would now approach the day in a completely different way. I was glad too but concerned about what the solicitor’s approach would be.

To help solicitors explain the process I have prepared this client’s guide to mediation for general litigation and this one for personal injury claims. Solicitors are free to copy and distribute them or simply use them as a template for their own version. It is then a simple matter of including it as a separate document in any letter recommending the process.

I also offer free assessments of cases to see if they would be suitable to mediate. The call can be a conference call including you and your client – if you want more information do not hesitate to call me on 0845 056 3625.

Every case has some element of risk

No matter how good a lawyer you are, litigation is risky. That’s a fact*.

Lost cases mean dissatisfied clients and possibly fee income written off. I want to help you avoid both.

Skilled mediators facilitate resolution of even the most entrenched disputes. My neutral and confidential involvement through mediation means even if you don’t settle, you gain a fuller understanding of the issues, strengths and weakness, enhancing the quality of your advice to clients and reducing the potential for mishaps in court.

If you find out in court that your unanswerable case is answerable after all it’s too late to do anything about it. Far better to find out at a mediation and negotiate the damage limitation.

If you would like any information or advice about mediation just call me on 0845 056 3625.

*I can’t improve on the way Megarry J put it in John v Rees [1970] 1 Ch 345;

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

A game incorporating the none cutter chooses rule.

I am from a family of six children. That alone teaches you how to share fairly. But we also had rules. If my sister or one of my brothers and I were left with a piece of cake to share between two of us we would invariably invoke the none cutter chooses rule. I would cut the cake, my sibling would get first choice of piece. It is a wonderfully simple method of ensuring the cake is split as evenly as possible.

Another thing I did as a kid was play lots of boardgames (I was always given the rules to read, destined for a legal career) and that has stayed with me. A modern game, San Marco, used the none cutter chooses rule as it’s central game mechanic. One player draws a number of cards and then divides them into groups – one for each player. The other players get first choice of cards – forcing the first player to divide them as evenly as possible or risk being left with the duds.

What on earth has any of this got to do with mediation? Well I was reminded of it all by an article You Don’t Have to Settle for Less Than the Biggest Piece of the Pie by A.M.Fink, here’s his bio:

… a retired research Mathematician. His interest in game theory led to devising and lecturing on fair and envy free distribution of assets. He presents seminars on practical ways to divide property or responsibilities to judges, mediators, and lawyers interested in collaborative law.

His article deals with a method of dividing an asset between two people who claim equal ownership of it but where the thing can not be divided – his example involves a baseball, but we could replace that with say a John Lennon guitar. Something obviously valuable that can not physically be divided in two.

Here’s “the rule”. Both sides secretly give the mediator their valuation of the guitar. Whoever gives the highest valuation gets possession of the guitar and pays the other person half of the average value. E.g. Alan says it’s worth £200,000. Beth says it’s worth £160,000. Alan gets the guitar but pays Beth £90,000 (half of the average valuation which was £180,000). Alan gets the guitar and pays less than half his valuation. Beth doesn’t get the guitar but gets paid more than half of her valuation.

Have a look at the article to see the logic, well worth a read. It’s not something I’ll be using any time soon in a mediation but I’m going to give it some thought …