Colm is a Canadian mediator, at the moment his site is being re-developed but it is normally at www.mediate.ca.

The book’s price tag may be a disincentive for many but Colm’s review is well worth a read and will help you decide if you can justify the outlay.

Related posts:

1. ADR Group annual conference
2. What lawyers can do for mediators.

Emotive headlines

Well in this recently reported case it was a 3 inch strip of land that caused the original problem. The newspapers have lead their articles with emotive headlines like this from the Mirror website

Evicted over 3 inches of land: Milica, 79, forced out despite winning case

You start on Milica’s side of course but when you read the “reported facts” and you may well temper, if not completely change, your view. I saw the headline and thought it’s probably another good example of a case where both parties could have saved themselves a lot of money, stress and aggravation had they attempted an early mediation of the dispute. But do you know what, I think in this case it might just have been a waste of time and added to the already enormous legal costs. I haven’t seen the latest Court of Appeal ruling but a quick search showed the case has already been in that Court twice in 2002 and 2007!

When should you mediate?

There are three simple questions to ask to determine if it is the right time to mediate a case. Sometimes people do not want to settle. Well they have that right but they have to take responsibility for the consequences however severe.

Related posts:

1. What does mediation cost?
2. Feuding neighbours should use mediation.

… if we are to make mediation second nature, if it is to be litigation’s twin, then we need to embed that culture from the very beginning of a lawyer’s training. Cultures change in a number of ways. They change through training those who are already part of the culture – something which we all have experience of having had to reorient our approach to litigation following the culture change introduced by the Woolf reforms … Importantly though, cultures change through teaching those who have not yet entered it. They change by teaching the new culture rather than the old one.

He said that mediation needs to “take take its proper place on the curriculum just as it is taking its proper place within our justice system.” This means there has to be a change of attitude in university law departments and law schools around the country.

It will be needed to ensure that our young lawyers from the outset of their legal careers, from the start of their first lectures and their first practical vocational courses gain a proper understanding that a knowledge and appreciation of mediation and ADR is as necessary a part of what it means to be a good lawyer as a knowledge of our adversarial system and substantive law.

To avoid proselytising I echo Lord Neuberger’s warning about being carried away by zeal. The purpose of this education is not raise mediation above all other forms of dispute resolution but rather to teach lawyers the when, why and how of using it.

If you would like further information about mediation training for lawyers please do not hesitate to contact me.

Related posts:

1. ADR : An essential competency for lawyers
2. “It is a truth universally acknowledged…”

“Mediation position statements are extremely useful documents prepared by lawyers and sent to the Mediator and exchanged with opponents well before the mediation.”

Well so much for the theory. In practice one of the following often happens:

• A lawyer says the pleadings will suffice (“I haven’t got time to prepare one.”).
• The statement is emailed on the night before the mediation.
• It is a bland re-hash of the pleadings telling me and the other side nothing new.
• It is hand delivered on the morning of the mediation and it’s a bland re-hash of the pleadings telling me and the other side nothing new. The other side take this as a deliberate attempt to undermine their preparation and we lose two hours of the mediation calming everybody down.

The following advice is for lawyers in the real rather than ideal world. The time you have is best spent on thorough risk analysis with your client and preparation of your negotiation strategy.  I’ll tell you what I think the position statement is for which makes it self evident what it should contain. In my view position statements are primarily for the benefit of you and your opponent – not the Mediator. Download the pro forma

What are position statements for?

1. Identifying what you think the issues are between the parties.
2. Explaining to the other side why they should change their view.
3. Telling the other side how much the dispute has cost in legal fees so far and the estimate of costs to trial.
4. Informing the other side who is attending on the day.

I will always need more information than that but I’ll get that in phone conversations with you before the mediation. I’ll find out what the case is about from those discussions and from reading the bundle you send me. If you have already prepared a chronology and case summary then put them in the bundle but I don’t want to create extra work for you.

Identifying the issues.

It is worth spelling this out. The thing you think is a burning issue might not even register with your opponent and vice versa. One of the very useful side effects of mediation is that it educates you about your opponent’s case.

Why should your opponent change their position?

They are only likely to do this if you can persuade them it is in their interests to do so. You have to persuade them, help them even. If they don’t shift position your client is going to get nothing out of the mediation. Having difficulty with this? – then you need to review your risk assessment and negotiation strategy and even ask why you are mediating.

Costs.

The parties need to know what this is all costing. Usually mutual interests can be identified which lead to settlement but sometimes when the final gap needs closing it can help to take a look at these figures.

Who is attending?

You must let your opponent know who you are bringing. They may have vehement objections and you haven’t got time to deal with this on the day.

Download the pro forma

Let me know what you think, post a comment.

Related posts:

1. How quickly can a mediation be arranged?
2. Planning for mediation

The UK Mediation Forum is now up and running. I have had the idea of trying to get as much web based information about mediation presented in one place for a long time now – I think that is a service people would appreciate. The forum features :

• general discussions about mediation
• relevant case law
• news
• links to articles and blog posts

Membership is open to anybody – mediators, lawyers, businesses or individuals. Once registered you can post news and views and join in the general discussions. Non members can still access the useful resources.

The success of the venture depends entirely on the users. By “success” I mean the forum is a place the mediation community regularly visit to find information about mediation and where such visits will generally result in them finding what they are looking for. For this to happen we need a lot of active users who are prepared to populate the forums with the links to the kind of things other users will be looking for. To encourage this anybody writing their own mediation blog or article is welcome to add a link to it in the forum.

Members of the mediation community who post links to their own articles or blog posts are free to publish this logo on their own website which will hopefully increase publicity for the forum.

At present the forum is not-for-profit. It carries no paid for advertising. I will keep this under review depending on the costs to maintain the site.

I would be very grateful if you would join the forum as an active member and promote it amongst your colleagues. I would also really appreciate your feedback and comments on the forum. Is it missing any features? Would you like a specific section that’s not already included? Do you want to be able to advertise courses you run or services you offer? Do let me know.

Related posts:

1. Using this website
2. RSS – really simple syndication for the really simple

"most judges already make stenuous efforts to commend mediation."

Many senior judges support mediation. Lord Jackson said in his recent report “Most lawyers and judges already make strenuous efforts to commend mediation.” I thought I would gather together some of the things judges have said both in and out of court.

Lord Clarke, immediate past Master of the Rolls

Lord Clarke has taken many opportunities to encourage litigators to make mediation an integral part of their dispute resolution toolkit. Here is one example.

I put my cards on the table from the outset. In my opinion mediation has an extremely important role to play. Just as with mediation in general, it must be an integral part of our tools for the settlement of PI claims. I have, of course, made this very point before, but it bears repeating. In fact it is something that MRs, and ex-MRs, emphasize time and time again. Lord Woolf made the point in his two Access to Justice reports. He has repeated it consistently since. His most recent reiteration, as far as I’m aware, came at the start of October. At the London Litigation Solicitors’ Association he once more emphasised how the reforms which take his name were intended to ensure that litigation was truly a last resort. He once more emphasised the central importance of mediation. Lord Phillips has done the same. And even Lord Neuberger, in the short time he has been MR, pitched in with his support when he gave his perspective on the management of claims in the current climate.

Lord Neuberger, the current Master of the Rolls

A lot has of course been said about the importance of ADR in recent times by Lord Phillips, Lord Clarke, Sir Alan Ward, Sir Henry Brooke, and Sir Gavin Lightman. Its importance was, of course, underlined by Lord Woolf in his two Access to Justice reports. I am conscious that, like me, they became Judges before mediation had really come on the scene in this country. However, in many ways, that emphasises the value of mediation. I believe that there will be many cases where it will be right for parties and their representatives to consider ADR in its various forms. They should do so during the pre-action stage of litigation. They should consider it after proceedings have been issued. And they should continue to consider it while the claim progresses to judgment. It is often said that it is never too late to settle.

Equally, in some cases it may well never be too earlier to settle. A lot of course will depend on the nature of the claim. But in the field of commercial litigation I can see no good reason why parties should not routinely, in almost all cases, consider adjudication, arbitration or some form of mediation. I suspect that in many cases this is already second nature to many commercial lawyers; not least those faced with the type of commercial considerations I outlined earlier. For those to whom it isn’t yet second nature, it ought to be.

Sir Henry Brooke, former Lord Justice of Appeal

From the important case of Dunnett v Railtrack:

Mr Lord, when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant’s precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.

Lord Justice Ward

Made these observations in Egan v Motor Services (Bath) Ltd:

What I have found profoundly unsatisfactory, and made my views clear in the course of argument, is the fact that the parties have between them spent in the region of £100,000 arguing over a claim which is worth about £6,000. In the florid language of the argument, I regarded them, one or other, if not both, of them, as “completely cuckoo” to have engaged in such expensive litigation with so little at stake. At the time of writing this judgment I rightly do not know whether any, or if so what, attempts have been made to settle this case and the remarks that follow are of general application. I raise that matter again in this judgment to make the point, as firmly as I can, that this is a paradigm case which, if it could not have been settled by the parties themselves, customer and dealer, then it behoved both solicitors to take the firmest grip on the case from the first moment of instruction. That, I appreciate, may not always be easy, but perhaps a copy of this judgment can, at the first meeting, be handed to the client, bristling with righteous indignation, in this case the customer who has paid a small fortune for a motor car which does not meet his satisfaction, and the dealer anxious to preserve the reputation of his prestige product. “This case cries out for mediation”, should be the advice given to both the claimant and the defendant. Why? Because it is perfectly obvious what can happen. Feelings are running high, early positions are taken, positions become entrenched, the litigation bandwagon will roll on, experts are inevitably involved, and, before one knows it, there will be two/three day trial and even, heaven help them, an appeal. It is on the cards a wholly disproportionate sum, £100,000, will be to fight over a tiny claim, £6,000. And what benefit can mediation bring? It brings an air of reality to negotiations that, I accept, may well have taken place in this case, though, for obvious reasons, we have not sought to enquire further into that at this stage. Mediation can do more for the parties than negotiation…
…The cost of such a mediation would be paltry by comparison with the costs that would mount from the moment of the issue of the claim. In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.

Lord Justice Dyson

In another important case Halsey v Milton Keynes General NHS Trust:

Parties sometimes need to be encouraged by the court to embark on an ADR. The need for such encouragement should diminish in time if the virtue of ADR in suitable cases is demonstrated even more convincingly than it has been thus far. The value and importance of ADR have been established within a remarkably short time. All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. But we reiterate that the court’s role is to encourage, not to compel. The form of encouragement may be robust.

Links to the above references:

• Lord Clarke’s speech Can Mediation work in Personal Injury?
• Lord Neuberger’s speech A Judicial Perspective on the Conduct of Claims in the current climate.
• Dunnett v Railtrack Plc [2002] EWCA Civ 303
• Egan v Motor Services (Bath) Limited [2007] EWCA Civ 1002
• Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576

Related posts:

1. What judges say about mediation.
2. Compensation £265, Costs £100,000, who needs Mediators!

The new Cerise Book. The vade mecum on mediation.

Sir Rupert Jackson’s proposals relating to mediation in his final report on civil litigation costs can be summed up easily. He recommended:

1. All judges and litigation lawyers should be properly informed about the benefits of mediation and the public and small businesses be “alerted” to these benefits.

2. Somebody – but not anyone with a commercial interest in mediation, so that rules me out – writes a handbook about ADR and puts in details of reputable providers of mediation.

No changes to the rules are necessary to bring this about.  I have been twittering today about one difficulty I have with his view that “Most lawyers and judges already make strenuous efforts to commend mediation” (see page 262 para 4.3). Is that really the case? I doubt it frankly. I don’t know as there is no research on it but I would say it is the minority that make these strenuous efforts. If he is right then it shouldn’t be too difficult to carry out his first recommendation. I think there is still a lot of scepticism about mediation and, I think, understandable reluctance by litigators to be told how to do their job.

I agree a handbook on mediation for judges and practitioners alike would be beneficial but I am concerned about the proposal for it to include “reputable providers”. Obviously I’d expect Hesketh Mediation to be in that list but how would I, or any other mediator, ensure their inclusion. How would a new mediator or provider get any work for their first year at least when they are not in the current issue? Would practitioners be fastidious in keeping up to date with the latest edition?

Judges and practitioners already have Green Book and the White Book, instead of adding to the library (I’d go for a Cerise Book if pressed) why not stick the information in there? We can deal with the “reputable” imprimatur some other way, but that’s for another post.

What do you think? Are most lawyers making strenuous efforts to commend mediation? How should we “alert” the public to the benefits of mediation?

Related posts:

1. Jackson review Final Report
2. Mediation and Lord Justice Jackson's costs review

Update: the BBC has reported that the RSPCA has now appealed against the original ruling against them. I will of course post a further details once that appeal has been resolved.

On 7th January 2010 James Allen QC, a Deputy High Court Judge give his ruling on costs (follow the link above to read the transcript). This was complicated litigation but one element of the Claimant’s case was based on proprietary estoppel – she had relied upon the conduct and statements of her parents as constituting assurances which she relied upon to her detriment. The court found in her favour in this part of the claim and then had to consider the costs. It is useful to set out a little of the history of the litigation:-

• 13/6/08 – Defendant offers Claimant £650,000 plus costs.
• 20/6/08 – Claimant asks Defendant to reconsider ADR.
• 20/6/08 – Claimant rejects Defendant’s offer but counter offers the Defendant part of the farm worth £850,000 and all the money in the estate bank accounts. Defendant rejects the offer.
• 24/7/08 – trial adjourned part heard.
• 19/9/08 – Claimant asked Defendant to reconsider mediation.
• 29/9/08 – Defendant asked Claimant if they she had any further offers to make.
• 28/10/08 – Claimant offered to accept 219.89 acres – the remainder worth £1,060,000 to Defendant.
• 3/11/08 – Defendant rejects offer.

Judge Allen found the despite Dr Gill’s repeated attempts to resolve the matter by mediation or some other form of ADR the RSPCA remained resolute in it’s opposition and this attitude continued after the commencement of the trial. Further the RSPCA clearly displayed a lack of enthusiasm to resolve the matter by way of negotiated settlement. This attitude was unreasonable and out of step with the court’s expectations. Consequently he ordered the RSPCA to pay the Claimant indemnity costs for this aspect of the claim. He said at paragraph 77 on page 26:

In my judgment the Third Defendant’s conduct and attitude in relation to the repeated proposals of the Claimant to adopt ADR is, in the circumstances of this case, sufficient by itself to take the case out of the norm but the appropriateness of indemnity costs in relation to the claim based upon proprietary estoppel is strengthened by the various offers of settlement made by the Claimant which were rejected by the Third Defendant, which offers, if accepted by the Third Defendant, would have resulted in lesser benefit to the Claimant than she has obtained in consequence of the Judgment of this Court secured by her.

The Claimant was seeking £400,000 on account of her costs so it is not an insignificant ruling.

What do you think? Was the court right to punish the RSPCA in this way? Should costs penalties to be used to force parties to mediate? Add your comment below.

Related posts:

1. Compensation £265, Costs £100,000, who needs Mediators!
2. When is the right time to mediate?

• Role of the Mediator and Autistic Hostility
• What lawyers can do for mediators

Autistic hostility is an interesting concept and Victoria Pynchon argues that it can create a challenge for mediators to re-open channels of communication for disputing parties – a pre-requisite for a successful mediation.

The other post looks at a couple of perceptive pieces by Diane Levin examining the distrust, if not quite hostility, that can exist between lawyers and mediators. Diane poses the challenge to mediators and lawyers to regard each other as partners in dispute resolution.

Related posts:

1. What lawyers can do for mediators.
2. Gender bias in ADR

If you are interested in attending a course in Manchester then contact me – if you would like to attend a course elsewhere in the UK then contact Tammy directly.

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