news
March
2008
Deadline for Submissions on Civil
Courts Review Consultation Paper
Mediation in Construction Disputes
Without commitment discussions and
meetings
Core Collaboration: new initiative
Mediation Advocacy in England and Use
by Blue Chip Organisations
Mediation Advocacy and Representation:
Be a Robust Negotiator
– 18 April
Autumn Flagship Mediation Training
Course
dates
Sport Resolutions Panel of Mediators
“I would argue that
there is no bad experience in mediation.
Even if you don’t have a
settlement, it still forces the parties to focus on the issues. You’ve had a chance to hear the other side,
you’ve a chance to prepare, and I think just for that purpose alone it can’t be
a wasted day.”
European
Legal Director,
Industrial/Manufacturing sector (quoted in Herbert Smith survey, see
below)
Deadline for Submissions on Civil
Courts Review Consultation Paper
The review group chaired by the Lord
Justice Clerk, Lord Gill, has invited
responses to its consultation paper by
31 March. This is an excellent opportunity to contribute to the shape of
the court system in the future and to reflect on the role which negotiation,
mediation and other ways of addressing unresolved problems can play alongside
the courts.
For some thoughts on the principles which
might underlie a civil justice system, click here, and here to read the consultation
paper. Click here to read Core’s response.
Recently, the attorney-general for
Mediation in Construction
Disputes
At a recent seminar hosted by the
Chartered Institute of Arbitrators, every one of the speaker panel, which
included a client, an expert witness and a solicitor, expressed the view that
mediation should be used much more in construction matters. They cited examples
from their own experience to illustrate the benefits:
- control and certainty over the
outcome
- choice and flexibility in
managing the dispute
- a recognition that there are
shades of grey everywhere
- savings in time and cost
- avoidance of lengthy
distractions from business
- “it’s about people” and the opportunity
to address this
- “litigation
consumes you”, as one speaker put it.
The Scottish
Building Contract now contains a
clause (Article 9.1) providing that contracting parties may by agreement seek
to resolve any dispute or difference arising under the contract through
mediation.
Kirk Ramsay, CEO of the Glasgow Science Centre, said in an article last year:
“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…These things are always about personal relationships – it
is people who do deals at the end of the day.” Click here to read more.
Recent Examples
of Mediation
- Public sector contract for
services to which procurement regulations applied
- Valuation of commercial
property purchased for investment
- Contractual issues in the design
of a unique building in specialist field involving not-for-profit and
commercial interests
- Issues in a substantial family
business
- Purchase and valuation of
business assets
- Governance in sport
- Senior management and employee
relations in local authority, charitable and higher education sectors
- Exit and succession arrangements
in a family farming partnership
- Professional negligence claims
against solicitors and others
- Construction of a residential
home
- Recovery of agency monies in
multi-party transaction
- Claims and counter-claims arising out of a
house-building project
In 2007, 39% of Core’s mediations involved
a public body. These included health trusts, local authorities, emergency
services, universities, other higher education institutions, sporting bodies,
housing bodies and not for profit organisations.
Without commitment discussions and
meetings
Remember that Core will offer to meet or
talk with parties or their advisers at any stage, without commitment or cost,
to discuss:
- whether a particular matter is
suitable for mediation
- how mediation would work
- how to make the best use of the
mediation process
- how to prepare effectively
Matters can often be dealt with at short
notice: Nip it in the Bud!
Just contact us on 0131-221-2520 or debbie.zima@core-solutions.com
Core Collaboration: new
initiative
Click here to read more about Core’s new initiative to help businesses and
organisations to build really effective partnerships, alliances and joint
ventures using our bespoke facilitation service.
Mediation Advocacy in England
We were honoured to welcome Alex Oddy, Head of ADR at Herbert
Smith, to address two recent seminars with Core.
In the first, he spoke to a group of leading solicitors about mediation
advocacy and ways of rigorously representing your client’s interests. His top
tips included:
- learn to work with the mediator
in order to do the best for your client
- remember that the parties own
the dispute and the process
- prepare clients well in advance
– manage expectations and conduct risk analysis
- understand the other side’s
personalities and motivation - separate emotion from the issues
- simplify apparently complicated
problems
- guard against any abuse of the
process
- take responsibility for what
happens
- be able to move from positional
bargaining to principled negotiation
- remember that there may be no
such thing as “failure” in mediation: the exchange of information is
useful and may provide the conditions for later settlement
- keep in touch after if the
matter has not resolved
- train your team in specialist
mediation skills
Alex also presented to a number of in-house lawyers. Based on his firm’s
recent research into the use of mediation and other dispute resolution
processes by 21 organisations with a combined turnover of over £400 billion, his
themes included:
- the critical influence of the in house legal team on an
organisation’s dispute resolution strategy
- users fall into 4 groups: Embedded Users,
Ad Hoc Users, Negotiators and Non-Users
- mediation is overwhelmingly the preferred
ADR process, followed by expert determination
- Embedded Users are focused on training:
maintaining and refreshing the skills of their in-house lawyers and
working hard to educate counterparties to accept and use ADR
- “We generally lean towards having ADR and mediation at an early
stage because we see no downside to it.
Even if it’s not successful, there’s nothing preventing you from
having another mediation further down the
road. It allows parties to prepare
earlier and it focuses management much earlier. Senior management
don’t focus on the issues until they are actually confronted with them –
attending the mediation focuses their attention.”
European Legal Director, Manufacturing/Industrial sector
Mediation Advocacy and
Representation: Be a Robust Negotiator
Friday
18 April,
We estimate that well over 300 lawyers in
For those who wish to learn more about how
to make best use of mediation as a solicitor, counsel or other adviser.
Core’s well received one day course covers:
- Effective advocacy and negotiation strategies
- Preparation for negotiation and mediation
- Co-ordinating the roles of client, experts, lawyers and others
- Pre-mediation arrangements
- Drafting written summaries and mediation agreements
- The stages on the mediation day
- How to make best use of mediation
- Persuading others that to mediate is not a sign of any weakness
Attendance leads to Core’s Certificate of Attendance at Mediation Advocacy and
Representation Training.
CPD:
7.5 hours plus
Interested? To download a registration form click here, to register online click here or contact Laura Rutherford on 0131-221-2520 or laura.rutherford@core-solutions.com.
Autumn Flagship Mediation
Training Course
Module
1: 17 – 19 September and 2 and 3 October
Mediator
Assessment Module: 20 and 21 November (Optional)
Early bird discount available until 31 May
2008.
For further information, contact
Sport Resolutions Panel of
Mediators
We are delighted that
Core Reading
We highly recommend: “The Speed of Trust” by Stephen
M R Covey, son of Stephen Covey of “Seven Habits….” fame.
The Last
Word
“ADR processes tend to separate those
lawyers willing to put themselves in our shoes and accept the risk of making a
real call on imperfect information from those who will forever say “we cannot
predict the outcome on the present facts” or “it depends”. If a lawyer has a commercial orientation,
then it’s pretty much a given that they will be ahead of the curve on ADR.”
Senior Litigation Counsel, Manufacturing/Industrial sector
(quoted in Herbert Smith survey)
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