Mediation Andrea Barnes Barrister & Accredited Mediator Clerksroom: Taunton & 199 Strand Outline • What is mediation • Isn’t it what we do already? • How does it work? • What is in it for me? • How do I train? Mediation • 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 relationship. • It is effective • It is private • It is without prejudice • It is cost efficient • Lawyers remain involved and work creatively not destructively Misconceptions…. • 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 settles… 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 Source: 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 litigation? • 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% Overview The European Perspective • Similar success • Court schemes up to 79% • General mediation 66% • Civil Mediation over 70% • Code of Conduct • Draft Directive • Accreditation Overview 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 disorder. • But…high ratings and pressure from network brass keep him from treating his disorder with medication. Preconceptions… – Counsel ~ just like we do at court – Solicitors ~ just like we do over the telephone – 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 Pantomime • Five minutes to read brief • Find an opponent • Colour coded • Negotiate for up to 15 mins • Get best deal • Review on completion Pantomime -debrief • Behind you? • Oh no he didn’t! • Oh yes he did! • Range of settlements • Significance What’s wrong with negotiation? • Range of outcomes even on identical facts • Focussed on wants not interests • Does not encourage lateral thinking • Strength of argument prevails • May prolong conflict • Unlikely to promote the apology • Pace driven by one of the parties Mediation • 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 flexible • 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 negotiation • 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 Helpline • DCA encouraged • Government pledge to use ADR Court decisions…leading up to • Halsey v Milton Keynes NHS Trust CA • Burchell v Bullard & others  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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