HUMAN LAW MEDIATION

Recommended Divorce & Relationship Breakdown Resource

For those of you going through the trauma of relationship breakdown and divorce, you can do a lot worse than to consider the resource at virtual law firm, Woolley & Co.

I have had some real help in developing my business from principal, Andrew Woolley and I can say that if you wish to deal with someone who will be sympathetic but firm, this is the person you wish to intruct.

Note the progressive nature of the business which includes fixed fees.

The website is excellent and full of helpful information.   

Recommended resource for UK lawyers looking for CPD

A good resource for looking for CPD courses is Source the Course - Legal CPD courses for solicitors, barristers, legal executives and legal cashiers - thousands of courses listed from over 90 legal training providers.  Legal Secretary Courses - click on Paralegals & Support Staff below to search for training courses for legal secretaries. You can save time in the experience by registering for CPD Watch. Essentially they will send you details each month of legal CPD courses coming up in your practice area and preferred location.

Are we going to have credit-crunch mediation?

An interesting piece in the FT saying that "big banks and their clients are gearing up for possible post-credit crunch lawsuits that may start hitting the courts within six months, leading lawyers said yesterday.

Lawyers report high demand for advice about contract flexibility and banks' vulnerability to legal action alleging mis-selling and mis-valuation of investment products.

The comments suggest all sides are trying to work out details of losses and potential culpability before launching lawsuits that will be costly and could shred reputations."

It is not all great news for litigation departments as the article observes: "While post-credit crunch cases have started to emerge in the US, it seems investors in Britain are still wary of the huge lawyers' fees and the bad publicity that inevitably accompany a commercial lawsuit in London."

On this basis, lawyers should be educating their clients on the advantages of mediation in that it can lead to claims settling sooner(thus saving legal fees and time) as you can circumvent the disclosure process and as mediation is without prejudice, confidentiality can be retained. 

Lawyers must not shy away from aggressive 1st offers

One of the trickiest stages of any negotiation is when to make the opening offer.

This is something which I have considered in depth with fellow mediators and also as part of the training I do with lawyers.

In my experience most lawyers try to avoid going first but should this really be the case?

As leading US mediator, Diane Levin points out on Mediation Channel:

No one ever wants to go first. But that first number possesses almost talismanic properties — it can profoundly influence how the other side perceives the value of what you demand. Studies have in fact shown that negotiators who make the first offer often do better than those who wait. Why? According to an article by Kellogg School of Management Morris and Alice Kaplan Professor of Ethics and Decision in Management Adam Galinsky,

The answer lies in the fact that every item under negotiation (whether it’s a company or a car) has both positive and negative qualities — qualities that suggest a higher price and qualities that suggest a lower price. High anchors selectively direct our attention toward an item’s positive attributes; low anchors direct our attention to its flaws…

Anchoring research helps clarify the question of whether to make the first offer in a negotiation: by making the first offer, you will anchor the negotiation in your favor…

While this may be true, Galinsky has also found that one of the most common negotiation mistakes is to make a first offer that isn’t aggressive enough.

An aggressive first offer can work in your favor for several reasons. Take the perspective of the seller: more extreme first offers lead to higher final settlements. For example, higher listing prices lead to higher final sale prices in real estate transactions because, as we’ve seen, high-anchor offers lead buyers to focus on a negotiated item’s positive attributes. In addition, an aggressive first offer allows you to offer concessions and still reach an agreement that’s much better than your alternatives…

One of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent. By making an aggressive first offer and giving your opponent the opportunity to “extract” concessions from you, you’ll not only get a better outcome, but you’ll also increase the other side’s satisfaction.

But:

Of course, it’s important that your opening offer isn’t absurdly aggressive. The first offer provides preliminary insight into the bargaining zone and range of possible agreements. An absurd offer can lead the receiver to believe that no agreement exists that will be acceptable to you both and therefore can cause her to walk away from the negotiation.

My views- And their lies the rub, if you want to negotiate effectively you have to strike the right balance and the key lies in effective preparation. As long as lawyers treat negotiation(and mediation) as some form of court case, this is not going to help them.  If they shy away from making 1st offers they will lose another tool in their amoury for effective negotiation. 

Potential cost savings of mediation in family disputes

Some interesting statistics which highlight some of the potential costs savings of using mediation and other forms of dispute resolution. With the Telegraph doing a series on infidelity and relationship breakdown, this could be very relevant to many people.

David Hoffman's Boston Law Collaborative has analysed 199 of its recent divorce cases, and found that mediation, collaborative divorce and litigation all produced high rates of successful settlement.

Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.

Source of post - Mediator Blah Blah

Lawyers - Do you wish to innovate...? Then enjoy this

Lawyers looking to start their New Year with purpose can do a lot worse than to look at two excellent resources:

Delia Venables is one of the most respected IT/Law Consultants & journalists within the United Kingdom. She provides a consistently high quality journal at an excellent value and continues to write the Internet Newsletter for Lawyers & Law 2.0 with Nick Holmes.

The latest edition includes. 

1. Firstly, she provide an article on Software as a Service - how it works, what makes it special, which are the main legal software companies already providing their software in this way, and why it is going mainstream in 2008.

2. Mark Harrison of small firm e-Litigate, describes how he "went virtual", giving a blow by blow account of the software, services and resources needed to do this. Probably, quite a few more firms will "go virtual" in 2008.

3. Susan Doe, Legal Librarian of international firm Sidley Austin, describes how legal research in England differs from legal research in the USA - different types of legal resource and different ways of using these resources.

4. Laurie Kaye provides a concise guide to what you should know about digital media law for the year ahead, including liability for third party content, privacy, jurisdiction and the role of technical standards.

5. Berwins LLP, a medium sized firm in Harrogate, describes why it decided to produce its own HIPs and how it does this.

6. Graham Smith has recently brought out the fourth edition of his "Internet Law and Regulation" and we ask him how the topic has changed over the last 11 years, since he brought out the first (slim) edition.

7. Stephen Moore describes a new (free) legal resource called CaseCheck which he has set up. This uses a Web 2.0 platform to present and analyse Scottish Court and EAT case summaries.

8. Robert Dow, Chairman of PLC, describes how his company is working on its own Law 2.0 products in connection with the new Companies Act and how PLC hopes to involve practitioners in sharing their knowledge and expertise.

9. Nick Holmes considers which Web 2.0 innovations are actually going to be of most use to lawyers (as distinct from the general public) over the next year.

The newsletter is primariy a printed publication (not everyone wants to spend their whole day glued to a computer) but it is also provided online, without extra charge. You can see what the newsletter looks like here. You cannot see the full stories unless you are a subscriber but you can see how it "looks and feels".

I thoroughly recommend Delia's and Nick work. It should be borne in mind that both have been top of their field for a fair time. 18 months ago I delivered a talk where Delia attended and one City lawyer partner said"Wow. You got Delia Venables to attend! How did you manage that?"

Alternatively......

Leading UK Blawgger,Charon QC - has recently not just provided an excellent Blawg Review(What is Blawg Review?) but he has just prepared a Weekend Podcast covering legal issues. As he writes "Each weekend, we are doing a 35-40 minute netradio programme. This week Charon talks to John Bolch of Family Lore on family law, Carl Gardner, Head of Legal, on the Peter Hain ‘Donorsgate’ affair, myself on mediation, Geeklawyer on solicitors wearing wigs and some developments in Intellectual Property Law and we also have a reflective post from Peter Rouse of Advizory.

Listen to the Weekend Review Podcast on Consilio"

As usual with Charon, he blends between law and current affairs with ease, serious content with humour, as well. 

Both Charon QC/Venables & Holmes are refreshing with the innovation and thought provoking material which they provide. 

More of the same, please.

Lawyers face the threat of disintermediation - How should they respond?

I am grateful to Nick Holmes of Binary Law who keeps me updated but consider this in the Times which represents the next instalment of Richard Susskind's book The End of Lawyers? 

"Lawyers, like the rest of humanity, face the threat of "disintermediation" (broadly, being cut out of some supply chain) by smart systems; and, as in other sectors, if they want to survive, their focus should be on re-intermediating — that is, on finding news ways of invaluably inserting themselves in supply chains. This will lead, I believe, to the emergence of what I call “legal hybrids”: individuals of multi-disciplinary background, whose training in law will have evolved and dovetail with a formal education in one or more other disciplines.

The formality is important. When most lawyers claim today that they are, say, project managers or counsellors, they are nothing of the sort. Too often they but dabble. They are dilettantes who have read an article or two and attended a few seminars or intense courses. We would not dare call someone a lawyer on the strength of similar schooling.

If lawyers want to re-invent themselves and carve out new multi-disciplinary roles that allow them to deliver new value, then their commitment to these neighbouring areas of expertise must be deep and our law schools should be gearing up accordingly. In this way, we will also formally be equipping lawyers of the future with the tools and knowledge to solve business problems and not just legal problems. "

Is the hourly rate sustainable?

There is a lot of material floating in the legal press about the sustainability of the hourly rate and lawyers fees generally.

Essentially lawyers fees continue to rise against a background where many businesses are reducing their rates. Consider this in the Law Society Gazette:

"Two out of three in-house counsel would pay higher fees for high-value work if they were charged less for routine matters, according to research published this week.

The Commerce & Industry (C&I) Group and accountants BDO Stoy Hayward found that, as hourly rates continue to increase, in-house counsel are under greater pressure to cut the costs of legal services.

The research showed a growing dissatisfaction with the hourly billing model, with one major corporate complaining that firms often billed for time that required no legal expertise – such as chasing people for information. Some 94% of all respondents complained that hourly billing provided no certainty over final costs and 82% that it gave no incentive for firms to be quick and efficient.

Two-thirds of respondents had already tried alternative billing models, with 47% favouring a menu-style approach that mixed capped, conditional and fixed fees. The majority were also keen to see value and fees more closely aligned, although defining value remained problematic.

Deepak Malhotra, chairman of the C&I Group fees focus group and general counsel at InBev, said: ‘Value is about meeting the needs and expectations of customers – of in-house counsel. But it is a two-way process and we should recognise that billing and its correlation to value is just one aspect. Often value and fees are linked to the quality of instructions. When the needs of in-house counsel and private practice are closely aligned, there is a better platform to build mutual value. We need to understand what value means to one another before we can measure it.’

Richard Tapp, company secretary and director of legal services at Carillion, told the report: ‘Law firms find it difficult to contemplate charging less than they would on hourly rates, and they find it difficult to explore the corollary of that, which is that sometimes they would be able to charge more.’

One respondent was concerned that law firms ‘focus purely on chargeable hours and not on providing the service the client wants at an economical rate.’ Another said: ‘Law firms are disconnected from the commercial realities. Almost all commercial organisations are required to make year-on-year cost savings – apart from law firms, apparently.’

The C&I group and BDO are now aiming to bring together in-house counsel and law firms ‘to work together to produce a practical toolkit which can help shape a different and mutually beneficial dialogue on fees’."

My views -It is very nice to keep your head in the sand and many of us have an inherent fear of change but clients are looking for differing ways to seek value and ultimately they will get it. This is a challenge for all lawyers. The real danger is someone is going to come out of the blue with a new business model and whittle down fees. How should lawyers respond?  

Will lawyers continue to exist?

I am a firm believer that technology is going to have a massive impact on the legal profession.

Against this background, consider this in the Times and particularly the words of Richard Susskind:

"It was a typical legal dinner. As the fine wine flowed, Richard Susskind cast his eye about the splendid wood-panelled main hall of the Mercers’ Company in the City of London. The mercers, traders in fine cloths and silks, had trained their last apprentice in 1888. Now, like many other ancient trades and crafts, from the tallow chandlers to the wheelwrights, they were mostly known for their livery companies. Could lawyers die out in the same way?

In a new book (to be published next year by Oxford University Press) Susskind argues that lawyers and the legal profession in their present shape face extinction – or at least are “on the brink of fundamental transformation”. He sees a future, as he puts it, when “conventional legal advisers will be much less prominent in society than today, and, in some walks of life, will have no visibility at all”.

The driving force towards the end of lawyers as we know them is twofold: information technology and what Susskind calls the market pull towards commoditisation – carving up a lawyer’s job into identifiable and discreet pieces that can be outsourced and done more cheaply by others. As a result, the jobs of many traditional lawyers will be substantially eroded and often eliminated."

Is Bill Clinton a brand?

Dan Hull, author of What about Clients has a good post on his blog entitled "Is Bill Clinton a brand?"

As he says, "Yes, and an increasingly compelling one, according to treatments in both October's The Atlantic and this week's The Economist. With some help from talented Ira Magaziner, a former Clinton White House aide and wonk's wonk, WJC is changing philanthropy to change the world. This also explains why Bill Clinton has still not responded to our help-wanted ad we ran in 2006 to ensnare him as of counsel so he could market for Hull McGuire in the eastern U.S. and Europe. The Bubba's been busy. But, Bill, our offer still stands."

Check the ad, it is pretty good.