Mediation and Collaboration
in the Commercial World
Meetings with Michael Leathes
Core’s recently appointed adviser in corporate matters, Michael
Leathes, had a full series of meetings on a recent visit to
Scotland. He held discussions with senior figures in the financial
sector, a cross section of key legal, private and public sector
players and a group of in-house and IP lawyers. Click here
to read the coverage by Scott Reid in the Scotsman business
pages.
The momentum achieved in meetings like these was captured by a
senior Scottish businessman who, having experienced mediation for
himself, commented:
The process was “outstanding and saved me a fortune and
endless agony.” It was “an eye opener to me and I now much
approve of the mediation concept.”
The visit coincided with an article on commercial mediation in
Scotland in the Insider business magazine – Kirk
Ramsay, chief executive of the Glasgow Science Centre is quoted
as saying:
“If you do go to mediation and get a resolution then that’s a
great result compared to the time and costs involved in a full blown
court action. ….We had to find a way to cut through and resolve the
issues so that everyone could move forward…We wanted pragmatic
resolutions not contractually based, legally stated ones…..”
Click here
to read the full article.
The Gowers Review of Intellectual Property in the UK has
recently recognised the need for practitioners and judges to
consider mediation as a form of dispute resolution. It recommends
that Practice Directions should be strengthened to provide greater
encouragement for parties to mediate. (Click here
for the full report).
The Intellectual Property Conflict Resolution Position of
BAT, developed by Michael Leathes, is of interest: Click here
to read the full text.
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Mediation in Intellectual
Property and Licensing
John Sturrock recently addressed the annual conference in Dublin
of the Licensing Executives Society for Britain and Ireland on the
topic of Handling Disputes in Technology Transfer using
Mediation. Click here
to read more.
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Scottish Civil Courts Review
The review group's consultation paper has recently been issued and was
formally launched at a conference addressed by the Group's chairman, Lord Gill.
The topics addressed are wide ranging and mediation is only a part of the overall picture. In the conference,
73% of the audience thought that the courts should actively encourage mediation or
other methods of dispute resolution and a similar number felt that mediation should be considered
at any stage in the process and would not adversely affect the development of the law and precedent.
The Review has been invited to consider whether greater use of mediation and other methods of
dispute resolution generally would be beneficial. Apparently, "several submissions expressed some caution, with
one taking the view that the benefits of mediation may have been "oversold". Advocates for mediation
say that mediation is not a panacea and this it is "underused" rather than oversold. They say
that it needs to be embedded in our system so that it is available as one of the range of options
open to people who are considering how to resolve their differences."
The Review will consider evidence about the use of mediation and other methods of dispute resolution
to assess whether, and in what circumstances, it can offer an effective complement, supplement or even
alternative to litigation.
Click here to read the issues which the Review group suggests should be considered.
The consultation paper can be found at www.scotcourts.gov.uk/civilcourtsreview/SCCCompleteR.pdf
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Recent
Research
To read about recent research on mediation by Dr Bryan
Clark and Amanda Bucklow, click here
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Resources
Doing Deals and Resolving Conflict using Mediation and NLP
David Fraser, one of Core’s panel of facilitators and mediators
comments: “One complementary skill-set that can be drawn on
extensively is Neuro Linguistic Programming (NLP), which is the
somewhat arcane name for an area of expertise that provides highly
effective, practical ways of working with people at the human level,
particularly in relation to what we say to ourselves and to other
people. Even in inter-organisational and other commercial disputes,
the human dimension can be highly significant.”
Click here
to read David’s full article.
Apologies and Acknowledgement in Mediation
The role of acknowledgement and apology is well recognised in
difficult situations but is often under-used. In mediation, these
can be powerful elements in moving the parties towards a
constructive outcome. In some parts of the world, such as Australia,
this recognition has led to statutory provision to enable apology to
be made without amounting to an admission of liability.
The Scottish Public Services Ombudsman has recently
published guidance on the giving of an apology (SPSO advice leaflet
2; http://www.spso.org.uk/).
Core will be hosting a seminar about the non-monetary aspects of
dispute resolution in employment matters.
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Core in the News
"Getting to Yes": article on collaboration in public affairs by John Sturrock 10 April 2008.
Scotland's latest business newspaper Business 7 carried a feature on mediation on Friday 25 January.
Core's John Sturrock is extensively quoted in the article by Erikka Askeland.
"Most of Scotland's major PLCs will have experience of mediation in some shape or form now"...
"Many major contractual and other matters will have been addressed using mediation. A lot of management issues have been
resolved using mediation. Many professional negligence claims against a whole raft of professional services providers have
been resolved using mediation. We are only starting with our journey, but the recognition in
Scotland is much greater than it was five years ago."....."More than 80 percent of mediations produce an outcome
which is attractive to most parties. Even if it doesn't produce a complete resolution, they narrow the issues, they understand
each other better and have built something of a platform for ongoing discusssion and resolution at a later stage."
In addition, Core's "Touchy Feely" advertisement in Business Insider has provoked interest. The message
is getting across that, for business people, mediation offers a robust and rigorous way to address difficulties and differences.
Click here
to read the news piece about Charlie Woods' appointment.
To read Pamela Lyall's article about the debate in Scottish
Parliament, click here
To read John Sturrock's regular Scotsman column, click here.
Click here
to read an Opinion piece on an international conflict centre
published on 30 October 2007.
To read David Ferguson's article in The Scotsman on
mediation in sport, click here.
"Ledingham Chalmers" Inform magazine recently published remarks
by John Sturrock about the benefits of mediation" click here.
To read the recent article in The Herald Society on
mediation in the NHS click here.
Click here
and here
to read the articles published in HR Network (Scotland) Magazine
- May 2007.
To read John's Opinion article on negotiating
a new constitutional arrangement between Holyrood and Westminster,
click here.
Click here
to read John Sturrock's fuller article in the Journal of the
Chartered Institute of Arbitrators entitled "Reflections on
Commerical Mediation in Scotland".
Click here
for our piece in Legal Week on 2 November about the growth in
commercial mediation in Scotland.
"You're the first lawyer to get me a result": Click
here to read an article by Pamela Lyall and John Sturrock on the
development of mediation in commercial, business, professional and
organisational disputes, the role of legal advisers and how to make
mediation work, published in Green's Civil Practice Bulletin, June
2006.
To read our regular Business Insider column, click on an
article title below
Thinking
Differently - April 2007
Effective
Conflict Resolution - March 2007
Learning
to Manage Conflict - February 2007
Thinking
out of the Box - January 2007
Becoming
"Dispute-Wise" - December 2006
Beware
the Bottom Line - November 2006
The
Power of Mediation - October 2006
Click here
to read other news articles featuring or written by Core's
principals and mediators.
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Five Years of Growth
Over Core's 5 years we have seen real growth in the use of
mediation in commercial, organisational and professional disputes,
in both the private and public sectors, as our statistics show - click
here.
The cases involve some complex issues and high values.
Nevertheless, many have been resolved within hours, supported by
excellent prior preparation by the lawyers involved and enhanced by
the value of face to face discussions by the key principals in each
party.
Recent examples have included roads engineering, banking,
education, auditing, the communications industry, professional
bodies, warranties on company purchase, redundancy schemes, property
conditions, management and boardroom difficulties and estates
management. Our statistics show many repeat users among law firms,
individual lawyers and other organisations.
As confidence grows, mediation is used in an increasingly diverse
range of situations, and legal firms and organisations from across
the UK, Europe and Africa have used the Core service. Often, lengthy
court proceedings are brought to an end. Other matters are mediated
well before the courts are engaged. Many mediations occur in
situations which would not be addressed in court at all. Some
involve working with parties at early stages of contracts and
projects. In most situations, a satisfactory oucome is reached.
Nearly always substantial progress is achieved, quickly and
effectively.
In some matters where an overall solution is not reached,
nevertheless mediation is an effective way to help parties to narrow
issues, to really understand where others are coming from, to
conduct a rigorous risk analysis with the help of an independent and
skilled facilitator and to refine the scope of any outstanding
issues which are unresolvable by negotiation.
In some situations, the mediation process provides the
springboard for parties to engage in constructive communication,
which can then continue without the ongoing involvement of the
mediator unless required.
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Training
Constructive
Communication
All good
negotiation, whether in mediation or not, involves engaging the
other parties in meaningful dialogue. Core has recently conducted
several in house courses for senior executives on the theme of
constructive communication.
Click
here for some common themes that emerge.
Our in-house and other specialist training courses are constantly
being updated and improved to meet growing demand. We have worked
with a wide range of fascinating groups throughout the United
Kingdom, Ireland and elsewhere, covering mediation, managing
differences, constructive communications, questioning techniques and
negotiation. These include three of Scotland’s largest financial
institutions, UK Sport, the Scottish and Jersey
Parliaments, the Equal Opportunities Commission, Audit
Scotland, several law firms (in-house, on away days and in open
courses), the Judicial Studies Committee and the Faculty of
Advocates (court room advocacy remains part of the Core portfolio!).
A feature in The Scotsman expands on some of these - click
here to read the full article. Click here
to read more about the UK Sport initiative.
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International News
"Mediators are not impartial". These were the deliberately
provocative opening words of Robert Creo, one of the most
experienced commercial mediators in the US, at the Annual Conference
of the Association of Conflict Resolution (www.acrnet.org) in Philadelphia
in October last year, which Pamela Lyall attended on behalf of Core.
Click here
for more.
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Mediation Standards
Core's Special Adviser on the development of mediation in corporate matters, Michael Leathes, is leading the
International Mediation Institute, an international initiative to help introduce global standards to mediation
as a profession. IMI has been established to help address two main factors that are perceived to slow the growth
and uptake of mediation to resolve disputes: lack of clear competency standards for mediators, and lack of understanding of
mediation. www.imimediation.org. Click here to read John Sturrock's comments on the IMI website.
Its initial proposals for standards in an international mediation profession can be read at http://imimediation.org/?cID=standards_main.
A world-wide Standards Commission has been appointed, including some of the leading mediators and innovators in the field of
conflict management from several countries and continents. http://imimediation.org/?cID=isc_list.
John Sturrock has beeen honoured to accept an invitation to be a member of the Commission.
Project Development
Click here
to find out more.
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Mediating in the Health
Sector
To find out more click here.
Mediation in
Planning
Click here
to find out more.
Young Mediators
Forum
Click here
to find out more.
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Core Foundation
Click here
to find out more.
More on Mediation
Click here
to read more on the following:
Draft Mediation Clause
Core Personal Injury Scheme
The Role
of Lawyers in Mediation
Using Co-Mediators
Mediation in Family
Matters
Legal Aid in Mediation
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