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Mediation presentation Mar 06

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Mediation presentation Mar 06 Powered By Docstoc
					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 resolv e 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 hav e considered using
    mediation to resolv e a business dispute

•   Very frequently            19.6%
•   Frequently                 18.5%
•   Occasionally               37.0%
•   Rarely                     14.1%
•   Nev er                     10.9%
•   Don’t know                 0%

Percentage of organisations that hav e actually used
    mediation to resolv e a business dispute

•   Very frequently            9.9%
•   Frequently                 7.7%
•   Occasionally               35.2%
•   Rarely                     13.2%
•   Nev er                     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
  [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!
Question Time?

				
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posted:10/16/2011
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