news
Summer 2006
·
Examples of the Use of Mediation
· Research
on Dispute Resolution and Mediation
·
Proposed Changes to Court Rules
·
Another Approach to Dispute Resolution
Examples of the Use of Mediation
We are often asked to provide examples of where and
how mediation is being used. Here are a few recent (anonymous) illustrations
from the Core portfolio:
·
a dispute over the provision and
functionality of software for use in the delivery of an important online
service to customers
·
the purchase and sale of a professional
practice where differences arose over an oral agreement reached and the
valuation of the business and where one partner had continued to run the
business
·
questions about ongoing losses suffered
by an agency providing services to a major distributor of products to the
household marketplace, where the agency agreement had been terminated
·
a joint venture property initiative
where ambiguity in the commercial contract caused a difference of view about
allocation of profit
·
a dispute over an estate following the
death of a landowner where various properties were in use by family members and
existing relationships were uneasy
·
claims for payment by a contractor on a
construction project, with counter claims by the developer, and differing views
about the involvement of third party contractors, with a concurrent need to
complete aspects of the works utilising the skills of those involved in the
dispute
·
a serious difference between two
colleagues in senior management in the health sector leading to tension and
appraisal difficulties
·
a dispute over completion of a housing
project, with remedies sought in court and arbitration, costs escalating beyond
the value of remedial work and years of uncertainty for a house-owner and
contractor
·
an unresolved claim involving a local
authority and a maintenance contractor for cleaning services
·
a dispute over the value of professional
advice given to a development project where the principals subsequently elected
to use other services
·
claims by a senior employee for salary
and other remuneration and bonuses after termination of employment
·
serious personal injuries suffered in an
accident with disputed issues about fault, causal link and quantification of
damages
·
financial provision in a divorce case
where assets were uncertain
·
a planning application in which
objections were made on the grounds of the effect on a profitable local
business which had no alternative location owing to the nature of the business.
The commercial director of a major construction
business had this to say about mediation:
“Overall, I would say that mediation is my
preferred route for dispute resolution, especially where there are numerous
parties involved (including insurers)
The important points for mediation for me are…
- Rehearse/prepare
- Good opening
presentations
- Map out the
day(s) in advance
- Have the
right experts on hand
- Have the
decision makers present
- Location
appropriate
- Choose the
mediator for the relevant dispute
- A
willingness to drive things forward and compromise
- Not to stay
locked in separate rooms until the other side blinks!”
Research on Dispute Resolution and Mediation
A recent survey carried out by the accountancy firm
Grant Thornton on The Future of Dispute Resolution
revealed that
·
82% of lawyers and 90% of corporate
respondents expected a greater shift towards ADR over the next 3 years, of
which mediation and arbitration are the most commonly used methods (although
arbitration is viewed as no cheaper or faster than litigation)
·
there is a need to develop ADR skills,
as disputes are being resolved without litigation and with greater use of
in-house lawyers, as corporate clients look to reduce cost
·
there is value for advisers in becoming
involved earlier in the dispute timeline with front-end risk management, and
for lawyers to develop and promote methods other than litigation or
arbitration, while also identifying different charging structures
·
the role and services of lawyers in
cases involving corporate clients may change and dispute work is likely to
become more multi-national in future
Dr Bryan Clark of the University of Strathclyde has
recently completed a substantial survey of awareness, experience and attitudes
towards ADR, including mediation, among commercial litigation lawyers in
Scotland. His findings are fascinating and will be
published soon. Key results include:
·
there is a widespread awareness of
mediation as the virtually exclusive ADR practice; many lawyers have received
some training
·
over two thirds of respondents had
recommended mediation to their clients
·
those who have received training are
more likely to suggest mediation and to represent clients in it
·
cost saving, speed, privacy, creative
solutions and preserving business relationships are perceived benefits
·
mediation is used where litigation
prospects are viewed as strong as well as weak – and is not viewed as a sign of
weakness
·
client resistance is a key factor in
declining to use mediation and in any mediation failure
·
nearly two thirds of those respondents
who have experienced mediation have used it again
·
mediation is used in a wide range of
disputes, with settlement rates approaching 80% - and higher if “partial”
settlement is included
·
there is a high level of satisfaction
with mediation
·
many lawyers see mediation as a new
business opportunity and have a prominent role in the growth of mediation
·
compulsory referral to mediation is not
supported although judicial encouragement may help
·
mediation is not viewed as detrimental
to the development of the law but as a way of expediting settlement
·
the future development of commercial
mediation may rest on clients understanding the commercial benefits for them
According to a study presented to the CBI by CEDR,
conflict costs business £33 billion per year and 80% of disputes have a
significant impact on the smooth running of business. Over a third of managers
would rather parachute jump for the first time than address a problem with
their team at work and many managers are not comfortable with addressing
conflict with clients or a boss. This is a concern given the consequences of
conflict for any business:
·
damage to company reputation
·
loss of morale and increased staff
turnover at all levels
·
impact on the reputation of those
involved
·
damage to business and personal
relationships
·
loss of custom and failure to meet
targets
The need for training was identified as critical.
Core’s recent training courses for managers and senior executives in this area
have been very well received. The utilisation of dispute resolution techniques
and processes in corporate governance, the boardroom, senior management, HR and
complaints is now recognised as an increasingly effective use of time and
resources.
Mediation
Skills Course – September 2006
Tuesday 26 to Friday 29 September
2006
CPD 28 hours
Register for our flagship course in September (with
optional Assessment Module from 8 to 10 November). Click here for more information and click here for the course prospectus. Click here to register online.
The quality of participation in our last course was
very high as participants from a number of disciplines and countries came
together with our international team of coaches to learn and practice skills to
manage differences and disputes in various business,
organisational and professional settings.
"I found the mediation training to be possibly
the most challenging course I have ever attended."
(Carol Paton, in house solicitor, Royal Bank of
“Quite the best I have been on. I was genuinely
very impressed. I can see that the techniques we were being taught were
used in the conception and delivery of the course itself.” (Jim
McLean, Burness)
For more information, contact
“Out of the Box: Modern Approaches to Problem
Solving”: Friday 17 November
- drafting
concise commercial contracts
- probability
and risk analysis
- challenges
for lawyers in environmental issues
- managing
organisational conflict
- advanced
negotiation techniques and
- making best
use of mediation
These are just some of the topics to be featured in
our proposed leading edge one day seminar. Mark your diary – more information
in August.
“You’re the first lawyer to get me a result”: A
recent article on the development of mediation in commercial, business,
professional and organisational disputes, the role of legal advisers and how to
make mediation work, by
Candleberry
Limited v.
A
neighbourhood dispute between a property developer and a homeowners
association, concerning servitude rights. In delivering the opinion of the
Inner House (appeal court), Lord Nimmo Smith
observed:
"We
hope that we have said enough to reinforce our observations in court, that this
is a dispute which ought to be resolved. It cannot be in the interests of the
neighbourhood that it be prolonged, and we would encourage a resolution by
compromise, perhaps with the assistance of a mediator."
To
read the full Opinion of the Court, click here.
Proposed Changes to Court Rules
The Sheriff Court Rules Council has recently issued
a consultation paper including a draft rule which will enable the court to
require parties to consider settlement of the dispute or referral to mediation
or to another form of dispute resolution.
See www.scotcourts.gov.uk/sheriff/rules_council/index.asp
In a recent conference on commercial dispute
resolution, Lord Clarke told the audience that it is likely that there will be
a rule proposed in the Court of Session, recognising the role of ADR in court
processes. He referred to the draft EU directive and European procurement
guidelines as well as to the judicial experience from elsewhere including
We would like to commend the work of Concordis International which operates alongside those
affected by armed conflict in the world, building consensus on issues that
divide them and working behind the scenes in some of the most hostile
environments, such as Darfur and Sudan, to develop
trust and build relationships between those who might prefer to shoot each
other rather than talk.
See www.concordis-international.org
Another Approach to Dispute Resolution
The US District Court in
(Avista Management Inc v
Wausau Underwriters Insurance Co)
We wish all our readers a very enjoyable summer
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