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Andrea Barnes
Barrister & Accredited Mediator
Clerksroom: Taunton & 199 Strand
• What is mediation
• Isn’t it what we do
• How does it work?
• What is in it for me?
• How do I train?
• A process in which two or more people
  involved in a dispute meet and with the
  help of a neutral third party, work out a
  solution to their problem.

• Both sides describe the dispute from their
  point of view and in their own terms.

• Both sides explain how they think the
  matter can be resolved.

• The mediator helps focus attention on
  relevant issues and helps the parties
  identify a workable solution.

• The mediator is not a judge.
Why use mediation?
• Power remains with the parties
• It avoids a deterioration in
• It is effective
• It is private
• It is without prejudice
• It is cost efficient
• Lawyers remain involved and
  work creatively not
 • The mediator is an arbitrator.
 • The mediator persuades the parties.
 • The mediator imposes a settlement.
 • Only lawyers can be mediators.
 • Its like expert determination isn’t it?
 • The mediator only tells the parties
   what the judge will do.
 • Joint Settlement (round table)
   Meetings are more effective
 • Telephone negotiation is cheaper
 • It’s a waste of time – nothing
What is the Likelihood of success?
•   For International Cases Mediated
    by CEDR 1997-1998
•   Number of Cases: 70
•   Range of Disputes:
    €48,000 - €1 Billion
•   Settlements:        84%
•   Average Length of Mediation
    Section: 1.6 days

    International Mediation – The Art of
    Business Diplomacy by Eileen Carroll
    and Karl Mackie, Kluwer Law
    International (2000)
What is the Likelihood of success?
• For Cases in 2004 in UK

Dispute Type          Success Rate
Commercial                  85%
Personal Injury             92%
Court Scheme                100%

Source: ADR Chambers
What is the Likelihood of success?
• For Cases in 2005 in UK

Dispute Type          Success Rate
Boundary                    75%
Commercial                  84%
Personal Injury             90%
Court Scheme                90%

Source: Clerksroom
   Business Disputes Survey
How was the dispute resolved?

Settled by   negotiation             43.0%
Settled by   mediation               18.0%
Settled by   other ADR process       9.0%
Settled by   trial                   30.0%

In comparison to other methods of dispute resolution,
how effective or ineffective is mediation as a means of
resolving business disputes?

Much more effective                  48%
Slightly more effective              30.8%
No difference                        8.8%
Slightly less effective              5.5%
Much less effective                  2.2%
Don’t know                           4.4%
Costs and delay
In your experience, what impact has mediation had on
    the time taken to resolve disputes, compared to

•   Significantly increased delay       1.6%
•   Slightly increased delay            4.9%
•   No change                           13.1%
•   Slightly reduced delay              16.4%
•   Significantly reduced delay         60.7%
•   Don’t know                          3.3%

In your experience, what impact has mediation had on
    your legal costs, compared to litigation?

•   Significantly increased costs       0%
•   Slightly increased costs            10.2%
•   No change                           5.1%
•   Slightly reduced costs              33.9%
•   Significantly reduced costs         45.8%
•   Don’t know                          5.0%
Usage and abusage
Percentage of organisations that have considered using
    mediation to resolve a business dispute

•   Very frequently           19.6%
•   Frequently                18.5%
•   Occasionally              37.0%
•   Rarely                    14.1%
•   Never                     10.9%
•   Don’t know                0%

Percentage of organisations that have actually used
    mediation to resolve a business dispute

•   Very frequently           9.9%
•   Frequently                7.7%
•   Occasionally              35.2%
•   Rarely                    13.2%
•   Never                     30.8%
•   Don’t know                3.3%
The European Perspective

• Similar success
   • Court schemes up to 79%
   • General mediation 66%
   • Civil Mediation over 70%
• Code of Conduct
• Draft Directive
• Accreditation
The European Perspective

• Why this pressure?

• Harmonisation
• Better trade / less delay
• Some inefficient judicial
  systems …
The judicial mind…
•   Judge James Leighland is an
    honorary judge for the tenth circuit
    court for the City of Los Angeles. He
    was disbarred in 1992, 1995, and
    1997 for volatile behaviour.

•   His sentencing of a man to death –
    just for shoplifting, so impressed
    television executives, that they
    gave him his own show.

•   In the second season he was
    diagnosed with multiple personality

•   But…high ratings and pressure from
    network brass keep him from
    treating    his   disorder     with

 – Counsel ~ just like we do at court
 – Solicitors ~ just like we do over the
 – Professionals ~ just like we do at
   site meetings
 – Lay clients ~ just suits making
   money from me
 A Senior insurer:
“Its Negotiation isn’t it…

…isn’t it what we do all day long?”

“Surely insurer to solicitor telephone
  calls are just as effective?”

..let’s experiment, and see what
    happens, and see
            • Five minutes
              to read brief
            • Find an
            • Colour
            • Negotiate for
              up to 15 mins
            • Get best deal
            • Review on
Pantomime -debrief
          • Behind you?
          • Oh no he
          • Oh yes he
          • Range of
          • Significance
What’s wrong with negotiation?

• Range of outcomes even on
  identical facts
• Focussed on wants not interests
• Does not encourage lateral
• Strength of argument prevails
• May prolong conflict
• Unlikely to promote the apology
• Pace driven by one of the parties
  • Does not depend on the skill
    or power of the parties
  • Provides a fair and
    balanced atmosphere
  • Creates a basis for mutual
    trust to be restored
  • Provides neutral third party
  • Allows parties to proceed at
    pace that they are both
    comfortable with
What mediation offers
• Mediation is structured yet
• Skills of mediator will
  explore range of solutions
• Allows parties to think
  outside the box
• Provides neutral third party
• Puts the parties in control
Principled Negotiation
• Mediation is a moderated or
  facilitated negotiation

• Important that it is conducted in a
  principled manner looking for
  legitimate outcome

• “Principled negotiation” is a skill for
  mediators and for advocates in any

• Principled negotiation underpins our
  approach to all aspects of mediation
Principled Negotiation template
• Pre-session
   – Prepare to negotiate

• Stage One
   – Establish guidelines and set the climate

• Stage Two
   – Define the issues and set the agenda

• Stage Three
   – Explore the interests until you reach
     mutual understanding

• Stage Four
   – Problem solve and form an agreement
What is in it for me?
• New role for counsel
  –   Interesting
  –   New skills
  –   Principled negotiation toolkit
  –   Good adjunct to the Bar
  –    Trains you to listen
  –   Reasonably well paid
       • Court schemes £100 - £150 per hour
       • Larger commercial £1,500 + a day
Is there work out there?
• Yes!
• Court based schemes
• National Mediation
• DCA encouraged
• Government pledge to use
Court decisions…leading up to
• Halsey v Milton Keynes NHS
  Trust CA

• Burchell v Bullard & others
  [2005] EWCA Civ 358

  – Court of Appeal
    encouraging use
  – Costs penalties for
    unreasonable refusal
So how do I become a mediator?
• Bar Council List requires 25
  hours of approved training
• Civil Mediation Council
  accredited mediation
  providers require 24 hours
  at least
• Plus pupillage (2 pr more
  observing) and mentoring
• Bar Mutual insurance
Where do I train?
• Variety of providers: eg:
  – CEDR £3,000
  – CIArb £2,500
  – Regents Park £1,895
• Western Circuit – series of
  approved training courses
  – Next, Taunton 19/21 April
  – Details in the room
  – £1,200 for Circuiteers
What do I do then?
• Join panel
  – Eg: Independent Mediators
  – Clerksroom
  – Bar List
• Set up chambers group
  –   Work with court schemes
  –   Approach large firms
  –   Approach Unions
  –   Market is open!
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