Who should the mediator be by jianghongl


									                     23 January 2013

Mediation: Models and Practise

                   Ranse Howell
Ranse Howell, JD, LLM, MSW

•   Joined CEDR in 2006 designed, developed and delivered mediation and conflict management
    programmes for both private and public sector clients in the UK, Europe and Asia. Designed
    the CEDR Certificate in Advanced Negotiation, which is a seven-day reflective learning course,
    designed to develop and enhance the participants approach to negotiation.

•   Publications - Emotional Intelligence and Projects, N. Clarke and R. Howell, PMI Press, 2010,
    “Two to Tango”, Venturing Beyond the Classroom, 2010; “Railway Strategy Comes at a Price”,
    Railway Strategies, September 2009; “Prepared for Conflict”, The Growing Business Handbook,
    Kogan Press 2009; “We Came, We Trained”, Rethinking Negotiation Teaching, DRI Press, 2009.

•   Lecturer on Mediation and enhanced ADR processes at Pepperdine University (London), City
    University of New York (School of Law), Canterbury Christ Church (Law Department), University
    of Southampton (School of Business) University of Birmingham and Cardiff University.

•   CEDR accredited mediator and has mediated numerous commercial cases (including
    construction, contract, employment and tenancy) in the US and UK.

•   Legal training Juris Doctor (JD) from the City of New York School of Law and worked in a
    boutique law firm in New York City. Master of Law (LLM - International Dispute Resolution)
    from the Straus Institute at Pepperdine University, Malibu. Master of Social Work (MSW) from
    Temple University, Philadelphia, USA, and is a trained counsellor. Bachelor of Fine Art (BFA)
    from Temple University, Philadelphia, USA.
Centre for Effective Dispute Resolution (CEDR)

• Largest dispute resolution provider in Europe (training and
  dispute services)

• Founded in 1990 (with member support from Law Firms and

• CEDR Foundation - Not for profit
   • CEDR Services – Commercial Training/Consultancy
   • CEDR Solve – Commercial Dispute Resolution Provider
   • CEDR Conflict Innovation and Resource Unit

• Supported by members
   • Legal and professional bodies
   • Corporate organizations

 A chronology of development of ADR in
 England & Wales
1990   CEDR Established

1996   CLCC pilot

1998   Court of appeal scheme

1999   Civil Procedure Rules introduced
               •    Overriding objective
               •    Active case management
               •    Cost sanctions

2001   Lord Chancellor’s ‘pledge’
2003   CMC established
2004   DCA announces plans for the future
2005   41st amendment to the PAPs
2005   National Mediation Helpline
2005/6 National Mediation Weeks
CEDR Offices – UK, China, Qatar and
 CEDR Solve - Dispute resolution spectrum

          Binding                      Non -Binding

   Imposed decision       Case appraisal        Structured negotiation

• Expert determination   • Early neutral        • Mediation”
                         evaluation             • Conciliation
• Adjudication
                         •Judicial appraisal    • Stakeholder
• Arbitration            •Complaints handling   dialogue/consensus

Dispute resolution spectrum

Negotiation                       Litigation
      Mediation               Arbitration

Informal                                Formal
Client-driven                  Judges and rules
Forward-looking               Backward-looking
Wide range of outcomes               Win / lose
Alternative Dispute
What is ADR?

• Any process involving the use of a third party neutral
   as an alternative to litigation

• Dispute resolution processes have existed informally in most
   cultures for centuries. Now being formalised into
   contemporary Civil Justice systems

• Can be used in addition to or alongside litigation (or
   arbitration) proceedings as well as an alternative.
Mediation Definition

Mediation is a flexible process conducted confidentially in
which a neutral person actively assists parties in working
towards a negotiated agreement of a dispute or difference,
with the parties in ultimate control of the decision to settle
and the terms of settlement
Mediation Definition

Mediation is a flexible process conducted confidentially in
which a neutral person actively assists parties in working
towards a negotiated agreement of a dispute or difference,
with the parties in ultimate control of the decision to settle
and the terms of settlement
              Civil Mediation Council
• Our Mission: To inspire all sectors of society to use
  mediation when managing and resolving disputes
• Aims:
   • promote the highest standards of skill, conduct and
     integrity in mediation
   • enable access to high quality mediation services
Civil Mediation Council (UK)

•For a body to be accredited:
•Training – 40 hours, 50% role play with 50% of these

supervised. Trainees must be assessed (using different
•Must have a separate code of conduct

•Complaints and feedback process

•New mediators must have access to supervision and

mentoring (must have observed at least two mediations
before being appointed as lead)

•Must have insurance of not less than £1,000,000

•Should have appropriate administration

•There has to be a panel of at least six mediators
Mediation Training provider – CEDR example
•   All trainees must complete the pre-course reading (16
•   All trainees must complete the 40 hour course
•   The accreditation of mediators is based on a cumulative
    score based on a competency framework



•   Trainees must complete a post-course assignment:
•   Settlement agreement
     •Self reflection – strengths and weaknesses

     •Post course action plan

•   It is possible to be reassessed for those participants who
    were unsuccessful
•   Once an individual has passed they are recognised as a
    CEDR accredited mediator
Relationship competency – CEDR example
Relationship skills
1.  Creates an environment conducive to                  2.   Develops communication and
    mediation                                                 interaction with each individual
    Sets the scene and sets the tone
                                                             establishes rapport quickly with the parties
    conveys energy, enthusiasm and personal warmth           and others present
    appears relaxed, alert and confident with the           encourages parties to talk and to express
     process                                                  what matters to them by using open questions
    makes good use of the physical environment               and other communication skills
    attends to participants’ comfort and needs              listens attentively, prompts, paraphrases, and
    motivates parties and representatives to                 reflects back
     participate                                             demonstrates understanding of each party’s
     Builds confidence and trust                              situation, their perspective and their
    establishes the mediator’s authority                     feelings about it
    communicates in an assured, open manner,                uses silence positively, and maintains good
     verbally and non-verbally                                balance of airtime between mediator and
    demonstrates neutrality through equal treatment          participants
     of the parties and use of non-judgmental language       recognises, respects and responds to
    has prepared well and appears well-prepared              expressions of emotion
    recognises issues of discrimination, equality and       allows parties to express emotion in order to
     diversity and manages any perceived power                enable progress
     imbalance                                               uses awareness of body language, own and
    defuses unhelpful tension and harnesses                  others, to enhance communication
     constructive tension                                    acknowledges the significance to parties of
    is sensitive to team dynamics and manages intra-         problems and issues
     team relationships                                      uses touches of humour effectively
    adapts to different individual and corporate            frames, reframes and uses language flexibly
     cultures                                                 so as to influence participants positively
Phases of a mediation





Roles during preparation
• Pre-mediation administration and contact
• Finalising mediation agreement
• Reviews legal case
• Prepares mediation documentation
• Prepares client and self
• Considers ECA
• Identifies BATNA
• Prepares self for active participation in the mediation
Roles during opening
• Explains ground rules and process
• Sets the tone
• Encourages participation
• Presents opening (to extent agreed with client)
• Acknowledges valid points made by other parties
• Listens actively
•   Acknowledges authority
•   Confirms understanding of mediation agreement terms
•   Makes opening (to extent agreed with lawyer)
•   Vents, “clears the air”, gives explanations and has
    “day in court”
Roles during exploration
• Builds relationship, trust and rapport with parties and lawyers
• Asks open questions to identify needs/interests
• Generates ideas – “expands the pie”
• Brainstorms options
• Shows creativity – lateral thinking – problem solving
• Identifies any legal or commercial issues with proposals
• Identifies needs/interests
• Generates options
• Assesses workability of proposals
Roles during bargaining

•   Reality testing
•   Framing and reframing - manages expectations
•   Identifies objective criteria
•   Uses strategies to break impasse
• Realistic assessment of strengths and weaknesses of the case
• Reviews BATNA
• Re-assesses costs
• Adjusts expectations
• Makes and reviews offers
• Yields to reason – open to other side’s reasoned points
Roles during conclusion

• Identifies areas of agreement
• Assists the lawyers to draft settlement terms
• Assists the parties to agree a process going forward in case of
  no agreement
• Advises client on pros and cons of proposed settlement
• Drafts settlement agreement
• Advises client on process going forward in case of no
• Assesses lawyer’s advice on settlement proposals
• Seeks to ensure that settlement will be endurable and takes
  into account causes of dispute                             22
Types of mediation programme
Traditional court Model
    Types of Court Mediation Programmes

Two types

• Court- Referred

• Court Connected (Annexed)
     Overview of Court-Referred Mediation

• ADR Centres may be linked to the court system but is
  not part of it.

       “Cases are either referred by the appropriate courts or
       from out of the courts. Agreements arising out of the
       court-connected mediation are usually enforceable as
       court orders.” (IFC, ADR Manual (2006))

• When the courts have identified a dispute suitable it
  refers it to an ADR Centre of Mediation Officer to make
  arrangements to conduct mediation.
Overview of Court-Referred Mediation
     Overview of Court-Annexed Mediation

• In Court-Annexed mediation, this type of ADR is provided
  by the court as part of the same judicial system.

         “ADR programmes or practices authorised and used
         within the court system and controlled by the
         Court. Case are referred to mediation by the
         Courts only. Often judges serve as mediators.”
         (IFC, 2006)

•   When the courts have identified a dispute suitable it refers it
    to a Court Mediation Officer to make arrangements to conduct
Overview of Court-Annexed Mediation

Litigants   Court        Annexed ADR


                               Med- Arb

       Overview of Court-Annexed Mediation

                 ADR        Dispute
                 Centre     Resolved
Dispute                                Unsuccessful
Advisory          Courts
Getting Cases to Mediation
Overview of Court-Based Mediation Programmes

Voluntary Mediation
• Traditionally most court-annexed programmes are voluntary.
• In a voluntary system, judge would offer the parties the
  possibility of resolving the dispute through mediation or
  another model.

Mandatory Mediation
•   Mandatory mediation is mandatory in terms of entry into the
    process but not in terms requiring a resolution to the dispute,
    as mediator cannot force the parties to a resolution.

Settlement rates of both systems are largely similar but
studies vary.
 Getting the Cases to Mediation –
 Types of Cases
• When should mediation be considered?
   Cost of litigation vs. amount in claim
   Little to gain from further discovery
   Parties are in deadlock
   Multi-actions involving common parties
   Sensitive issues / evidence
   Concern over credibility of witnesses
   Parties do not want publicity
   Control of outcome of dispute
   Benefits of mediation process
   Creative non-monetary outcomes might be
  Getting the Cases to Mediation - Types of

• When should mediation not be considered?
   When legal, commercial or other precedent needs
    to be set
   Summary judgement is available fast and efficiently
   Parties requiring emergency injunctive or other
    protective relief
   Where publicity is sought
 Getting the Cases to Mediation –
 Screening Cases

• Where does screening occur:
   Automatic referral if an agreed category of dispute-
   with opt out by parties
   Screened by court staff/registrar prior to allocation
   to judge.
   Screened by Judge at preliminary stage of litigation
   Specialised case track management unit
   established to allocate to litigation of mediation.
 Getting the Cases to Mediation – Referring

• Roles of Judges and Court Registrars:
    Selecting appropriate cases for mediation
    Explaining mediation and its benefits to parties
    Using court rules to encourage referral to mediation
    Enforcing the settlement agreement
    Getting the Cases to Mediation – Referral
• Pre- trial -Invitation to Attend Mediation
    When the Court has identified a dispute suitable for
     mediation it should send a letter to the parties inviting
     them to participate-
   Question: Courts staff or mediation centre?
• During-Trial
    If a willingness from the parties to use mediation, during
     hearings then judge could refer case to mediation.
• Logistical Arrangements and Notice of Set Down
    Once a dispute has been recommended for mediation,
     the Court arrange a stay on proceedings.
Encouraging Parties to mediate-
Incentives and Sanctions

Incentives for the parties:
•   Return of the court fees
•   Stays of proceedings
•   Preference for setting down for trial if no settlement
•   Others?

Incentives for Judges:
• Extra recognition for cases referred to mediation by a
  judge in disposal statistics

• Adverse costs orders ( Civil Procedure Rules of England
  and Wales)
• Others?
ADR orders

The Civil Procedure Rules 1999

Part 26 – Rule 26.4(2)


• all parties request a stay…….or

• the Court, of its own initiative, considers that such a
  stay would be appropriate, ……..the Court will direct
  that the proceedings be stayed for one month [to allow
  ADR to take place]”
ADR orders: the Commercial Court and beyond

 • Now made in any Court

 • Parties required to exchange lists of mediators by Week 1

 • Parties shall in good faith endeavour to agree by Week 2

 • Failing this, the Court will assist at a hearing on Week 3

 • By Week 4, the parties shall take such serious steps as
   they may be advised to resolve their dispute

 • If not settled, parties must report to Court
Administration of a Mediation
Administration of the Programme – Who?

Broadly two options:

1. Existing Court staff dealing with all cases

2. Separate staff within a court-annexed centre
Administration of the Programme
     Administration of the Programme
Pre-mediation –
• Creation of case record (if necessary)
• Invitation letter to parties with mediation brochure
• If a willingness to use mediation set up mediation including:
    Check terms of mediation agreement and signed.
    Advice on preparation of briefing materials for the
    Coordinate submission of briefing materials for
    Coordinate times of mediation, date and mediator
 Administration of the Programme – Pre-
 Mediation Actions

Who should the mediator be?
• Should be formally trained as mediator
• Judges
• Lawyers and other professionals
• Criteria to be on the mediators list at the court
      Administration of the Programme

The Mediation Day- Considerations

•   Length of Mediation
•   Number of sessions allowed
•   Time allowed from agreement to mediate to settlement
•   Facilities required
   Administration of the Programme

Settlement Enforcement and Non-settlement Reports
• Pro-forma settlement agreement completed
• Consent decree if necessary – how best is this done?
• Dispute should be referred back to litigation and the stay
  on proceedings lifted.
     To whom?
     How?
    Administration of the Programme

What are the obstacles to developing court
annexed mediation in Moldova?

•    Legal

•    Stakeholders

•    Practical
Facts, figures and examples

  • 81% of mediating parties came to the
    mediation by mutual consent, rather than
    through court intervention

  • 94% of mediations last just one day

  • 80% of mediation referrals dealt with within
    three weeks
What do they mediate (2007-2012)?

  Supply of goods / services                                   22%

                    Finance                              15%
   Professional negligence                              14%

               Construction                        9%
               Employment                     7%

                   Property                   7%
                 High Tech                6%

                Partnership              5%

                          IP        4%

                  Insurance         4%
                      Injury        4%

                   Maritime    2%
                      Other    2%
Recent research data
Recent research data

                   43% saved over £100,000
Final thoughts…
• ADR can provide a solution but it is not the only option

• Those jurisdictions that want to let mediation develop
  have got to be prepared to trust the process and allow
  the field to develop

• Possible to partner with stakeholders who will
  use/implement mediation services within their own

• Have a business approach to ADR without losing sight of
  the overall goal

• Mediation is not a substitute for structural issues/
    Ranse Howell
+44 (0) 207 536 6009

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