Halliwells partners to attempt mediation

Legal Week reported that the partners of Halliwells LLP have agreed to try and resolve the administrators’ claim against them for £21 million through mediation. Sadly so far I have not been asked to be the mediator but I’m sure they’ve got my number.

Partnership disputes and administration claims are two areas where mediators can assist and add value to both parties.

I have helped resolve a claim made by administrators trying to recover sums against a former business owner. The business owner obviously wanted to avoid incurring legal fees which were mounting up. He also wanted to negotiate a settlement in preference to taking his chances in court. The administrators were eager to recover as much as possible at the lowest cost – net recovery being the important issue. I was able to re-open negotiations which had stalled. They found a solution within two hours (it wasn’t a £21 million claim!). They needed me because trust had broken down and neither thought the other was realistically looking to settle.

I have also acted in a number of cases where partners have fallen out, whether in medical practice or commercial ventures. These disputes have a lot of emotional complications. Partnership disputes can be very bitter affairs but a mediator knows that a solution worked at together by the parties can avoid the stigma of a winner and loser will often benefit both sides far more than any judicial ruling could. One such job I did ended with the former partners embracing each other – so relieved were they to have put their differences behind them. It’s just so difficult to do that in court.

If you are acting for clients involved in a partnership dispute or an administration claim and would like to know more about how we could work together to settle the claim give me a call on 0845 056 3625.

Not part of mediator training after all

I was intrigued by this headline Man accused of pushing teen through window sending shard into chest ‘was mediator’ in the Plymouth Herald. I was alarmed in case I had missed the defenstration module of my mediator training course. It turns out I needn’t have worried, the “mediator” was just an amateur and not one of my accredited colleagues.

Having said that the quote “I went there trying to be a mediator but instead it turned into a circus” could relate to a number of jobs I’ve been involved in. The case continues …

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I am a Professional Mediator. I also happen to have a legal background – I was a solicitor for 17 years before I became a full time Mediator. I have specialist knowledge of personal injury litigation in particular. I was therefore interested to read this comment from Lord Jackson at page 387 in his recent review of civil costs :

There is a widespread belief that mediation is not suitable for personal injury cases. This belief is incorrect. Mediation is capable of arriving at a reasonable outcome in many personal injury cases, and bringing satisfaction to the parties in the process. However, it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation. (emphasis added)

I am not sure I agree with this view and I am certain my guest blogger this week does not. I am honoured and delighted to welcome David Richbell a mediator with In Place of Strife, one of the most experienced commercial mediators in Europe. David has this response to Lord Jackson’s comment:

As a practising commercial Mediator I was, of course, delighted to read (on page 387 of Rupert Jackson’s report) his support of mediation for personal injury cases. However, he went on to say “it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation”. Unfortunately that seems to be the trend in the marketplace – lawyers tend to appoint Mediators that have specialist knowledge in the area of their particular dispute. It seems to me to demonstrate a misunderstanding of the Mediator’s role, which is not to be an expert in the particular field – parties have their own advisors for that – but to manage the mediation process in a way that gives the parties their best chance of achieving a solution. To do this the Mediator needs to be able to create a trusting relationship with everyone present at the mediation and to have the wisdom, experience and negotiating skills, as well as a firm hand on the process, to ensure that people remain focussed and that momentum is maintained. None of that requires specialist knowledge.

I accept that a ‘specialist’ Mediator speaks the jargon and may bring comfort to a party because s/he understands the problems and difficulties in a particular sector. But the downside is that the Mediator gets immersed in the detail, because it is her/his specialist area, when one of the most important mediator roles is to help parties get out of the swamp of detail and take a more ‘big picture’ approach. That can be difficult for a specialist – I know how eager I am in construction disputes (my ‘specialist’ area) to study the claims and analyse the papers. But mediations are settled through commercial negotiation, not on points of law or technical detail.

I passionately believe that a good Mediator can mediate anything. But then as a generalist Mediator who wants to do Personal Injury mediations, I would say that wouldn’t I?

Many thanks to David for his views. What do you think? Add a comment below and join the debate.

In a recent survey about mediation issues carried out by the Civil Mediation Council 78% of respondents said the CMC should publish a register of individual mediators. The question is how do you get on to the register and would this amount to regulation of mediators and the mediation profession?

This issue has been the subject of fierce debate on both sides of the Atlantic and there is no clear consensus of opinion. My own view is that mediation is a profession. The public who may decide to hire my services as a professional mediator have a right to know that I have been properly trained and accepted amongst my peer mediators as a member of the profession. I am therefore in favour of regulation in principle. However, being a qualified solicitor, I am fully aware of the costs, complexities and difficulties of regulatory schemes .

What do you think? Should UK mediators be regulated and if so how and by whom and at what cost? Add your view below.