HUMAN LAW MEDIATION

Recommended resource on mediation - The Mediator Magazine

An excellent resource on mediation is "The Mediator Magazine" which is edited by Matthew Rushton.

This month in Craving Collapse the magazine asks what the anticipated downturn might mean for mediation generally, and whether mediators, like litigators, can look forward to an upsurge in work.

Elsewhere conisderation is given of  IMI's global standards commission; details of David Shapiro's departure from SJ Berwin; and news of the launch of an organisation for mediation advocates.

They meet mediator Amanda Bucklow as she returns to the UK following a World Bank appointment to mediate a US$5bn dispute in Fiji. And following last month's poll, they sound out three leading non-lawyer mediators on whether lawyers really do have an advantage as mediators. (See Is Law-Law better than War-War?.)

In My Toughest Mediation this month, Jane Andrewartha writes about handling multi-party disputes where interests and principles are in conflict.

Great resource. Worthy of support.

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!

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.

How to negotiate to deliver results

Mediation is about agreement and compromise. For some this might not seem a good way to resolve a dispute, especially when fuelled by the idea of 'winning'. But when you consider the success rates of mediation - where both parties reach an acceptable conclusion - settlement in mediation has to be a better result than 'losing' through the Courts.

According to figures released by the government disputes using mediation settle in at least 80% of cases.

In a mediation situation the mediator will be seeking to help all parties reach agreement using the crucial skills of negotiation. These skills will be used, not only by the mediator to help reach an agreement, but can be used by the disputing parties themselves and their lawyers. Indeed lawyers who master the art of negotiation can not only help their clients reach a settlement, they can often help them get a better deal.

So what should you do to ensure an effective negotiation? Here are just a few tips:

Plan & prepare in the right way - The most successful negotiators are not those that are gifted but those that have in fact given careful consideration to the issue at hand. This can manifest in researching your position and the other sides, your aspirations and those of the other side. If you start thinking what are your best-case scenario, your worst case and giving thought to the concessions that you will make, this sets the basis of having a successful negotiation.

Listen more than you talk - All of us like to express ourselves but often when the other side (or in the case of a mediation, the other side and the mediator) is talking they reveal some information about their desires for the negotiation. Often this can be part of an area of overlap and can be all the difference between the deal being reached or not and enabling you to successfully negotiate more effective terms.

Keep emotions in check - In my experience many people get far too emotional when they negotiate. Emotion is not necessarily a bad thing as it shows motivation. However if you lose control the chances are that you make some form of error which may come back to haunt you in the negotiation process. If you have researched your position carefully, anticipated some of the issues which may come up, then this puts you in a better position to negotiate.

Balance aggression against co-operation - Often individuals can think that the best way to negotiate is by being aggressive. As a mediator I don't agree and believe that the best result can come from a softly, softly approach. According to research conducted in the United States up to 87% of negotiators performed more effectively when they were co-operative whereas those that considered themselves aggressive negotiators 85% of them were found to be ineffective. As a consequence it can be assumed that the aggressive negotiator will only see his or her tactic work in 1 in 6 cases. For a lawyer or mediator this is probably an unacceptable fail rate, so learning another way is well worth while. Food for thought for negotiators who believe that to get the best deal you need to project strength.

(Generally) make the first offer - When people are negotiating many people like to see the other side make the 1st offer but is this the best way? According to Leigh L. Thompson, author of The Mind and Heart of the Negotiator it is not as she writes: "Whichever party - buyer or seller - makes the first offer, that person obtains a better final outcome. Why? First offer acts as an anchor point. First offers collate at least 0.85 with final outcomes, which suggests how important they are." In my experience there are circumstances when you should not make the 1st offer such as if you are dealing with a party who may be desperate to get a deal but generally you should make the 1st offer albeit not too low so that it is accepted straight away.

Gordon Brown is doing what a mediator does - The search for the contradictory and paradoxical solution

The recent elevation of Gordon Brown to become prime minister and his recent visit to the United States has posed some queries about how his premiership will shift the UK/US diplomatic relaionship.

As was recently written in the Telegraph

"According to a YouGov poll in Friday's Daily Telegraph, 71 per cent want Mr Brown to "ensure that Britain's Prime Minister and the US President are no longer joined at the hip'."

Electoral dynamics require that he appear to distance himself somewhat from the US in general and President Bush in particular, at least to ensure that the words "Yo Brown!" are never uttered.

They will. Mr Brown wants to win the next election, and win big. But he has no desire to be the first PM since Heath not to form a strong alliance with at least one US president.

The "special relationship" may not be a vote-winner in 2007, but it is as much a part of the office Mr Brown has craved for so long as the keys to Number 10 or weekly audiences with the Queen.

This is a matter of geopolitical practicality as much as historical precedent. For all the talk of other alliances and configurations, some of it anti-American, much of it merely priggish, the US-UK military and intelligence partnership is still the only show in town."

It is against this background why Gordon Brown will do what a mediator and negotiator does which is to search for balanced and possibly the paradoxical positions to align the conflicting interests.

In other words, he make "positive" statements on Iraq but will use different language and make subtly different decisons to his predecessor, Mr. Blair. However there will be no clean break and whilst there will be a shift in style the changes in substance will be less.

This skill should not be understated.

Often a mediator will use these skills as well. The result being that cases that were headed to litigation and had no prospect of settlement become settled.

5 ways to avoid costly litigation

Each month I send my a monthly ezine free to subscribers. Here is the current edition in blog format.

According to the mediation group, CE DR the estimated cost of conflict to UK business exceeds £30Bn a year, with damage to company reputation, exposure in the public domain, loss of customers, increases in staff turnover and missed opportunities resulting from the diversion of management time all cited as negative consequences. As a consequence there is every incentive for firms to avoid having disputes, but how do you avoid having them in the first place?

1 Think carefully about the type of people that you do business with. This can manifest in the types of organisations that you buy from and the kind of people you recruit to your firm. By way of example, I have dealt with one firm who has been struggling to enforce some non-solicitation clauses within an employment contract against some former members of staff. Despite the business being on strong legal ground they have been sucked into a costly dispute when the staff left the firm and started flouting the employment contract and approaching clients of the business. This could have been avoided if there had been effective recruitment processes in the first place.

2 Be the kind of organisation which does not create disputes. In my experience many firms are constantly embroiled in disputes and yet there are those who are not. Why? Unfortunately some management teams are just simply too prone to get into difficulties. If your firm has a commitment to engage in harmony with your staff and with business suppliers when issues become difficult, this is far more likely to avoid disputes arising in the first place. If the worst does happen and you have to conduct litigation, try to do so in a firm but composed way.

3 Seek to communicate effectively and consistently. One of the biggest reasons why disputes are created is due to a failure to keep a good dialogue with clients, staff and business associates. One way around this is to have a constant commitment to maintain informal dialogue with staff and business associates. By having consistent and informal management settings between management and others, this will minimise the prospect of a dispute taking place and misunderstandings resulting

4 Have management trained to face up to the dispute. Conflict can be difficult and many managers are not effective with dealing with conflict situations and typically perceive them to be bad news likely to interrupt their working day and quite possibly to threaten their future career prospects if news of the problem gets out. Dealing with conflict can be difficult with managers more likely to become aggressive (“fight”) with the other party or to climb into their shell (“flight”) until it becomes a crisis. By having management effectively trained to deal with disputes there is more potential to nip them in the bud and to avoid things getting worse later.

5 Have plain English and not too onerous legal terms. With respect to the law, on the one hand you need legal terms and conditions and employment contracts to protect your business interests but if terms are too oppressive not only will they create resentment from the other side (and can be a source of conflict with business suppliers as you seek to negotiate) but being too onerous terms there is the risk of the Court striking them out as unreasonable if you seek to enforce them.

If you wish to subscribe to the monthly ezines, please email me at justin(at)human-law(dot)co(dot)ukwith the word "subscribe."

Thank you to Victoria Pynchon at Settle it Now blog for giving me the idea to do this.

The dangers of letting rip in an opening mediation session

UK Commercial Mediator, Jon Lang writes in  his excellent book "A Practical Guide to Mediation in Intellectual Property, Technology & Related Disputes" the following:

"Parties need to think about how their presentation will be received….. It may be cathartic to let rip, but the people on the receiving end will close their ears the most, if not all what comes next. They will have all but walked out of the mediation. In fact they may actually walk out. Every pre-conception, every negative thought everything that is held against the party uttering those cathartic words, will be reinforced and validated, and entrenchment is likely to follow.”

Should lawyers and their clients be forced to mediate?

This was a piece in last month's Law Society Gazette which explored the theme of forcing parties to mediate.

"District judges and masters at London’s commercial courts should be given the chance to force parties to mediate before they are allowed to come to court to see if the idea would work, a law lord has said.

Speaking at the first anniversary of the Mayor’s and City of London Court’s mediation pilot, Lord Neuberger, who was promoted from the Court of Appeal in January this year, said he thought a mediation scheme giving ‘the right of a district judge to order mediation seems to me something worth considering’. He said masters and district judges were vital in moving cases to mediation.

Commercial litigation should benefit from such a move, according to Seamus Smyth, head of litigation at City firm Carter Lemon Camerons. ‘Broadly, I’m in favour of vesting in district judges and masters the power to impose mediation, because of the potential benefits.’ Mediation produces surprising successes that might not happen without some encouragement, Mr Smyth said, but he added that there should be no adverse consequences if the mediation fails.

Compulsion will not be a wholly popular move, however. Richard Stephens, mediator and legal consultant, said mediation is ‘good and valuable’ but it should not be used to save an ailing system. ‘I’m not sure litigants would like to be told that they must use mediation because the court system is creaking at the seams,’ he said.

Though the Mayor’s and City of London Court’s voluntary mediation pilot has been hailed because of a quoted 82% success rate, this achievement is being judged on only 17 cases mediated over the course of a year.

Jeremy Ferguson, chairman of the mediation committee at Devon and Exeter Law Society, which also runs a small claims mediation pilot, said some reports have found that success rates drop when an element of compulsion is introduced. ‘That doesn’t invalidate a pilot,’ he said."

My view - I think there is a real danger in forcing parties to mediate because for some people justice involves having a 3rd party ruling in their favour - If you order mediation, are you not denying someone their fundamental right bearing in mind the pressure which some mediators can apply on parties?

Mediation has real benefits for parties but it is no panacea and should not be applied in every case.   

I am talking for Lawyers for Change on 12th June

I have previously posted about the admirable work of Lawyers for Change.

I am delighted to say that I will be talking at one of their events on Tuesday 12th June on the subject of mediation. More details to follow.