Don't Bring a Knife to a Gun Fight
David Pliener • April 18, 2019
Mediation is well-established as the ‘ADR of choice’ in both the construction and insurance fields. Almost every piece of litigation I have been involved with over the past 5 years has either settled at, or attempted to settle at, a Mediation. However, dissatisfaction with Mediators and the process remains widespread and I think that is in part because the parties and their legal advisors (and, more often than not, the Mediators themselves) do not really understand the process. Or, to put it more kindly, they are not all agreed about what process they are all involved in.
It’s important to keep the issue in context. Many insurance and construction disputes are being successfully resolved through Mediations. This has had a significant impact on the number of trials making their way through to the TCC and Commercial Courts. This is, on one view, a success story. Nevertheless, the thrust of this blog is to suggest that we could be doing a lot better.
The crux of the problem is, in my view, that parties, lawyers and Mediators are confused and often inconsistent about whether they are looking for an evaluative or facilitative process. Whilst Mediation can offer both of these possibilities, everyone needs to decide and agree in advance what they are looking for and the parties and advisors need to understand enough about both processes to make that an informed decision. One often hears comments such as ‘we just want a commercial discussion’ on the one hand, but also that ‘we want a Mediator who will express a view’, and often those comments will be made in relation to the same Mediation.
I have often attended Mediations where one party has turned up ready to fight the trial, witness and expert reports in hand and legal submissions fleshed out, with the other party backed only by a 2 page Position Statement saying that they have come along to discuss options. That mis-match is not a fruitful place from which to Mediate and is apt to leave the parties frustrated with the process and the Mediator.
There are, I think, a couple of interesting features of the current market practice which provide an insight into how parties are currently approaching ADR.
For some years now, the TCC has offered an Early Neutral Evaluation (“ENE”) Scheme. The parties can, for almost no additional cost (save for their own costs), invite a judge to provide an ENE on the merits of the case. For those many parties and lawyers maintaining that what they really want from an ADR process is some evaluative input, one might think that this was ideal. A TCC judge, no less, opining on who is likely to win and why.
However, what is most noticeable about the ENE Scheme is that, despite the apparent clamour for evaluative ADR, the take-up is very low indeed, certainly in the construction and insurance industries. Now, it may be that this reflects shortcomings of the particular ENE scheme, or that it has not yet had time to gain traction. However, one might suppose that if evaluative ADR was the panacea some seem to suggest it is, then there would have been more of an impact. It seems to me that the more likely reason is that, despite the swagger, many parties and their advisers are reluctant to put their cases on the line at an early stage quite so openly. A negative ENE risks destroying any negotiating leverage.
The other end of the spectrum is also interesting.
The construction market has the unique additional feature of a mandatory term being implied into every construction contract entitling the parties to refer a dispute to Adjudication. The intention was to resolve cashflow problems during a project, to make an interim enforceable decision quickly, get jobs finished and argue about the substantive legal position later. When referred, an Adjudicator will make a rough and ready decision within 28 days as to the parties’ rights, which will be summarily enforceable by the Courts as governing the position unless or until the parties choose to litigate. The interesting thing about the process, which was never the intention, was that (i) it is being used in relation to projects that finished long ago rather than just during the works, and (ii) it is extremely rare for parties to take a dispute to Court once it has been decided by an Adjudicator, notwithstanding their right to do so.
This has been very widely used process and when I opened with saying that most of my litigation goes to Mediation, that was carefully worded, because many of my construction disputes never get to litigation (or Mediation) at all.
So, where it is possible to undertake a ‘full-on’ evaluative process, even if that is rough and ready, the parties are willing to roll the dice and are often willing to leave it there. That might suggests that a properly structured evaluative process can be very successful in resolving disputes. However, notwithstanding their speed, Adjudications can still be very expensive and, just like litigation, the decision is out of the parties’ control. What is more, they do nothing to assist the parties in continuing to work together, as they will often need to do on a project or on subsequent projects. Of course, the Adjudication process is, in part, so widely used, because it can be instigated unilaterally by either party. I doubt it would be nearly as widely used if both parties had to agree from the start.
What this tells us, I think, is that an evaluative ADR often looks more attractive than it is. Adjudication works because the referring party perceives there to be an advantage and the responding party has no choice. That is as blunt an instrument as one may imagine.
The real question therefore is how the parties and their advisors should approach Mediation in this field. Of course, each case will have its own issues. It is often thought that disputes such as those in construction and insurance are not suitable for facilitative Mediation because, typically one is dealing with corporate clients, often with insurers on both sides, arguing about nothing more than payments of money. That is not my general experience. Contractors have reputations in the market and need to maintain relations with developers and suppliers. Insurers have an eye to how they are perceived, especially in the relatively confined construction insurance market and are often especially sensitive to the views of brokers. They invariably care about getting claims off their books and the sums crystallised. It is rare that the parties, or the individuals involved, have no interests other than the bottom line number. Often those other interests overlap, even if it is only the wish to not have to deal with the dispute anymore.
Whilst I can see that there may be a role for evaluative ADR – especially if there is a discrete legal point which is fundamentally holding up any other negotiation – I think that the lack of take-up of the ENE Scheme reflects the understandable reticence of the parties to go down that route, especially at an early stage. For the reasons I’ve explained, I do not think that the ‘success’ of the Adjudication process suggests otherwise.
Taking that into account, I think the key element in any Mediation in this area is not the need for evaluation by the Mediator, but rather the need to make sure both parties actually understand the other’s factual and legal case, so they can assess the risks and take into account their wider interests. Turning up with a 2-page Position Statement is unlikely to achieve that aim, unless the cases really are very well set out in correspondence (pleadings, in my experience, are more apt to obfuscate), but turning up armed for trial is also unhelpful.
The Facilitative Mediator can then focus on helping the parties understand their respective cases, and to explore the wider context and interests involved in the dispute and wider relationships in order to encourage the parties to consider and hopefully agree solutions.
There are a number of very significant benefits in this approach. Firstly, it has the best chance of finding a solution which can address both parties’ needs. Secondly, it can create a framework which can reduce the chances of future disputes. The final benefit is a practical one. If a facilitative process fails, the parties can still turn to a more evaluative approach. Where there has been an evaluative process, which has not resolved the dispute, there may often be very little further room for negotiation.
A better understanding of the pros and cons of Mediation and the types of Mediation will I think go a long way to improving how it is utilised and enhancing its reputation in the market. Agreeing in advance exactly how the Mediation is intended to proceed, will significantly improve the chances of success.
On 20th December 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. This Convention is due to be signed on 7thAugust 2019 in Singapore. The Singapore Convention ("The Convention") facilitates the enforcement of international commercial settlement agreements that result from mediation. The Convention provides a framework for the recognition of international settlement agreements similar to that provided by the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards. Specifically, the convention applies to settlement agreements reached outside of court and arbitral proceedings, which without the convention are not directly enforceable in a domestic legal system. There are several prerequisites that a settlement agreement must establish in order for the agreement to fall within the scope of The Convention. The agreement must (1) “result from mediation”, (2) be “conducted by the parties in writing”, (3) “resolve a commercial dispute”, and (4) be “international”. The mediator must also “lack the authority to impose a solution upon the parties to the dispute”. The Convention defines mediation as “a process, irrespective of the expression used or the basis upon which the process is carried out, whereby the parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons”. International is defined in two ways by The Convention: Firstly, a dispute is international if “at least two parties to the settlement agreement have their places of business in different states”. Secondly, a dispute can also be international if “the State in which the parties to the settlement agreement have their places of business is different from either (1) the state in which a substantial part of the obligations under the settlement agreement is performed OR (2) the state in which the subject matter of the settlement agreement is most closely connected.” So why is this important for mediation? The significance of the Singapore Convention is that it provides the enforcement of settlement agreements that have been achieved through mediation conducted in foreign jurisdictions. This addresses the instances where parties fail to adhere to the settlement that has been agreed upon during their mediation. This is a major turning point for the mediation process. Parties will now able to enforce the agreements made in a mediation as if they were an arbitration award; meaning parties have more power and protection over the settlement agreement, whereby previously, the parties could only enforce the mediation agreement in the same way as a contract. This would mean that parties would have to undergo an onerous, lengthy journey in order to reach a court judgement and then enforce the judgement in a foreign country. Mediation will therefore gain traction with businesses.
Introduction In my practice as a property practitioner I have rarely taken part in mediation, so when I embarked on the challenge to train as a mediator I felt like I was somewhat entering into the unknown. My view of mediation in practice swung between it being a tick box exercise so not to get in the court’s bad books and a useful way to bang the heads together of two parties at each other’s throats. It would be fair to say I really did not understand the nature and benefit of the process. I appreciate my lack of mediation experience is somewhat unusual in the property field, where mediation is used often. However, unfortunately, I do not think my old-fashioned cynicism of the process is that unusual. Following my attendance on the ADR ODR Mediator Training Course, which took place at Hardwicke Chambers in September 2018, my view of mediation has significantly changed and developed. In this blog I hope to share some of the knowledge learned on that course as well as considering the role that mediation plays in property disputes and some ways in which it could be utilised more. What is a property dispute? Property law is vast and varied. It focuses on disputes over the creation, ownership, transfer and protection of property interests, as well as the impact of relationship breakdowns, death and dissolution of partnerships. It involves landlord and tenant, commercial, agricultural, residential, local authority, and development property and covers buildings, green space and everything in between. There really is no such thing as a typical property dispute. In any given case a barrister may be involved in advising a client about a dispute, drafting letters before action and encouraging settlement out of court. If a settlement is not forthcoming then you will move on to draft or respond to court proceedings, encourage mediation, attend court for interim hearings and finally attend court for a trial. Clients are often landowners, tenants and businesses, and cases tend to be tried in county courts, the High Court and property tribunals. What is mediation? ADR ODR International, in their recent blog of 20 September 2018 “Why mediation is important in the workplace?” define mediation in the following terms: “ It is an effective way of resolving disputes without the need for the court’s intervention. A neutral third party – the mediator – will facilitate the mediation and will help all parties come to a suitable and satisfactory agreement. Mediation is a specific skill that aims to help people in the best way it can.” The Harvard Law School Daily Blog defines mediation in the following way: “Mediation is a process of third-party involvement in a dispute. A mediator cannot impose an outcome but rather assists the disputing parties in reaching their own agreement. Mediation can be used in a wide range of disputes, including labor disputes, public policy disputes, disagreements among nations, family disputes, and neighborhood and community quarrels. According to research, about 80% of dispute mediations lead to resolution.” So really mediation is a way for the parties in a dispute to think up a way out of the conflict and make a binding decision to resolve their dispute, utilising a neutral third party to facilitate that. Mediation in property disputes Mediation is often used in property disputes. It is an ideal way for parties to take control of their dispute and reach a decision which is beneficial to both parties. Taking control back from the court and thinking of options outside of the usual orders that a court can make is a very attractive option to those involved in property disputes. Mediation is so popular in property disputes that some well-known practitioners in the field set up a specific property mediation service, called “the Property Mediators”. They explain why mediation in beneficial in relation to property disputes, stating: “ Mediation is ideal for property disputes. It addresses your real needs, and allows you and your opponent to create your own solutions in a way that invariably cannot be done by a court. Property mediation will end the uncertainty of litigation, continuing anxiety and horrendous costs. Once the case is settled you will be able to get on with your business and move on with your life.” In relation to property disputes mediation is typically used in cases involving neighbours arguing over the ownership of land, party walls, rights of way and boundaries. It also is often used in relation to family disputes involving property such as inheritance claims, trusts, co-ownership and the property impact of relationship breakdown. How could mediation be utilised more in property disputes? One way in which mediation could be utilised more in property disputes is for negotiating leases. If the parties were at a stale-mate regarding the terms of a new lease or a renewal, mediation would be an ideal way for the parties to work through their difficulties and reach a successful outcome. In relation to social housing, mediation could play an extremely beneficial role in neighbourhood anti-social behaviour disputes. Rather than one party facing an injunction or even eviction from their home, mediation could help resolve the problems between neighbours, saving the social landlords lots of money and helping the residents maintain their tenancies. This would benefit the complainants because their neighbour may well agree terms and conditions for their behaviour, such as not playing music at certain hours, which the court would not. Social landlords are in the business of maintaining tenancies so mediation suits their needs and it obviously suits the protagonist because they save being evicted. Additionally, online mediation is infrequently used and could be an extremely useful tool for those short on time or where face-to-face meetings would be challenging. It could be particularly useful for dealing with assured shorthold tenancies. Those tenancy documents are often held on online portals in any event and claims for possession of the properties subject to those tenancies are made online. The natural next step would be online mediation. Conclusion Mediation is certainly not just about banging together the heads of the parties – in fact what I have learned is that it has nothing at all to do with banging heads together. The mediator takes a totally impartial, even, non-judgmental, non-opinionated role. That is not the role either party is able to muster in a property dispute, nor the role of a judge. As such, what the mediator brings to the table in a dispute is an alternative for the parties; a way to reach a solution; a way to end the matter there and then; a way to stop the conflict; a way to stop spending money; a way for the parties to come together to themselves find a solution they are both content with. The benefit of mediation in property disputes is vast but, in my view, the greatest benefit is reaching a decision outside of the confines of the court order. Often these disputes involve neighbours who are going to live beside each other and see each other most days for most of their lives. Being able to find a solution to suite both parties which is thought up and agreed between themselves, rather than enforced by a judge, provides for a much happier home living environment. Laura Tweedy Hardwicke
Housing and property disputes take many forms including disagreements between landlords and tenants, between neighbours and between property owners and public agencies. Between January and June 2018, in the county courts, there were approximately 8,953 mortgage possession claims and 61,280 landlord possession claims at all stages of proceedings (of which 37,526 were social landlord claims, 12,023 were accelerated claims and 11,731 were private landlord claims). Median average time from mortgage claim to repossession between January 2018 and June 2018 was approximately 44 weeks. Over the past two years, the median has varied within a range of 34 to 81 weeks. The median average time for landlord possession claims to reach each stage varied depending on tenure type, but the overall median time from claim to landlord repossession was approximately 20 weeks between January and June 2018. [1] Bringing and defending a housing claim can be an expensive process with long delays not helping to deal with the often complex relationships between the parties. Delay is therefore clearly a relevant factor, especially in cases concerned with serious rent arrears, neglected properties and those involved in anti-social behaviour. A landlord in the private sector with a mortgage to pay, in receipt of nothing from their tenant, may well feel frustration that after waiting 2 months after serving a section 21 Housing Act 1988 notice, there is further delay before they obtain a possession order and then again before enforcement by bailiffs. Disrepair cases continue to be issued either as standalone claims or defences to possession proceedings. The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill will increase tenant’s rights to demand homes fit for human habitation. Even leaving aside the legal fees, those without fee remission, have to pay a court fee of around £355 and a hearing fee. In addition to housing disputes processed in the county court, there are cases in the Magistrates’ court and in the property chamber of the First Tier Tribunal. Different procedures apply in each forum. Quick, effective and inexpensive relief is what is sought by those in dispute. Neither the tenant living with no heating or suffering from water ingress or a landlord with other financial obligations, waiting for rent to be paid, necessarily wants a formal trial in court. Mediation and the housing court The government has announced an intention to consult about the establishment of a dedicated housing court. This would deal with residential possession matters, tenancy deposit disputes, repairing obligations between landlord and tenants, harassment and eviction claims, injunctions for access and EPA 1990 claims currently dealt with by Magistrates courts. The Residential Landlords Association consider that it should be based on the FTT model. “The advantages of this would include: capitalising on the large number of cases decided on paper by the tribunal, making the process easier to access; using the mediation and enhanced alternative dispute resolution procedures the tribunal operates; enabling the use of the tribunal’s in-house surveyors and inspectors and thereby saving costs; and being able to integrate with and take full advantage of the new online court, so the majority of records could be dealt with online. The more informal operation of the tribunal should make it less daunting for tenants and landlords. The tribunal currently holds hearings in local public buildings, making it physically easier to access. The tribunal tends not to award legal costs where there would be advantages if the current cost-limited model were retained.” (Lord Flight, 20 June 2018 at 4.47pm, Courts and Tribunals (Judiciary and Functions of Staff Bill), second reading in the House of Lords). ADR is not a substitute system but a complementary one, helping the parties consider the best alternative or worst alternative to negotiated settlement. “ADR (particular mediation) has a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases…Mediation can bring about earlier resolution in cases which are destined to settle and can, on occasions, identify common ground which conventional negotiation does not reach.” (LJ Jackson) Mediation can offer the parties greater control and flexibility to reach a mutually acceptable settlement involving compromise by both parties. In my opinion, mediation would complement a housing court, giving individuals, many of whom are likely to have ongoing relationships, after the court case, with a chance to discuss the conflict between them without the constraints caused by the rule of law and the court process. Compulsory mediation? Should mediation be compulsory in housing and property disputes? So that whilst parties remain free not to settle their disputes, the civil justice system requires them to attempt to settle. If so, at what stage is this legitimate? The Civil Justice Council ADR Working Group published their interim report in October 2017 on “ADR and Civil Justice.” They concluded that ADR has not become an integral part of the civil justice system and that it needs to become more culturally normal. They recommended the promotion of ADR more actively at and around the allocation and directions stages. The Working Party considered whether ADR should be made compulsory as a pre-condition of access to the courts, at some later stage such as the CMC hearing or at the specific request of the court in the cause of case management. The Working Party considered the factors for and against compulsory mediation at section 8 of their report. There was concern that compulsory mediation as a pre-condition to commencing proceedings would be an unnecessary burden in undisputed and undefended matters. The concern about compulsory mediation at the CMC stage is that it may not resolve cases in which the parties are reluctant to mediate or have already tried and failed to mediate. The concern about compulsory mediation in individual cases is that it may reduce that parties’ access to the courts by insisting that they attend mediation against their will. These concerns are valid in the field of housing and property and until clear evidence that compulsory mediation results in more settlements or longer lasting solutions, it should remain a voluntary process. There are also potential problems with the conduct of mediation amongst parties having unequal power relations. If one party is considerably more powerful than the other, they may not have sufficient incentives to compromise. Without knowing the extent to which mediation can successfully occur amongst parties with differing powers, it is not clear that compulsory mediation will reduce the number of cases going to trial. An incentive to remedy a problem might be provided to those with a concern about reputational damage or the publicity of cases, if they got to court or the Ombudsman. Another issue with compulsory mediation is whether and how it would work where there are a number of tenants affected by a particular matter. Mediation may be ineffective for large scale cases. Digital access to the court and ODR techniques? HMCTS is undergoing a six year £1bn reform programme which includes greater provision of online services. Since March 2018, HMCTS have been piloting the use of fully video hearings in the tax tribunal. Digital access to the court has the potential to make case management and other hearings more accessible. Assisted Digital support services for those less confident using online services are also being considered. It is easy to see how, once parties are increasingly using digital services, there will be greater use of online dispute resolution techniques by those with housing and property disputes to resolve issues. A number of county courts have closed down meaning that the nearest court is often a distance from the parties. This can have a particular impact on those on low income. ODR can offer ADR to those engaged in low value disputes or those who became of distance or time constraints would not be interested in a face to face mediation. Digital access to the court and to mediation, may enable more people to participate provided they have access to a computer, tablet or mobile phone. Another exciting opportunity for mediation in low value housing and property disputes would be the Online Solutions Court with its formal incorporation of ADR. If introduced, this will also provide a valuable opportunity to assist litigants in persons and those dealing with small claims to resolve disputes. Mediation enables parties to reach mutually satisfactory solutions to disputes, whether through traditional face-to-face mediation or through online dispute resolution, in a manner not available at trial. In many of housing and property disputes, parties have an ongoing relationship and mediation can offer one way of finding a solution that reduces the likelihood of repeated litigation. Mediation will in my opinion benefit parties engaged in housing and property disputes and should be promoted around the direction and directions stages. ODR should play a vital role in the process of ensuring greater digital access to the courts and in any housing court. [1] ( https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705598/mortgage-landlord-possession-statistics-jan-mar-2018.pdf and https://www.gov.uk/government/statistics/mortgage-and-landlord-possession-statistics-quarterly-april-to-june-2018 )
The construction industry has a number of features which make it ripe for disputes readily to arise between parties. For instance, it is a cyclical and competitive industry where as a consequence the margins on projects can be low but due to the complexity of the projects the potential for errors and the disproportionate cost of remedying those errors can be high. In addition, it has long been recognised that maintaining cashflow during the course of a building project can be a real difficulty, and it was this which led to the introduction of a statutory adjudication scheme in the Housing Grants and Regeneration Act 1996 which is underpinned by the ‘pay now argue later’ principle. Adjudication is a procedure whereby any party to a crystallised dispute may refer that dispute to an adjudicator who, generally within 28 days, will give a decision which is binding unless and until overturned in subsequent litigation or arbitration. Mediation is a means of dispute resolution which has already had some impact in construction, because of the notable benefits it offers; but there is further positive impact it could have. The benefits of mediation over litigation are obvious. It will generally take 12 to 18 months for a case to come to trial in the TCC and the costs involved are normally significant because of the inevitable need to use experts, often from multiple disciplines, and the multi-party nature of disputes because of the number of people involved in the contractual chain or delivery of the project. By contrast, mediation can be arranged more quickly, is logistically easier and significantly cheaper. As many construction disputes also tend to be between businesses, the advantages of mediation as a confidential process and which can result in a confidential settlement, if the parties so wish, is useful in protecting brand image and reputation and not causing loss of customer or client confidence. There are still, however, a number of ways in which mediation could be better used in the construction arena. In particular, in the larger disputes where there is often leading counsel involved on both sides, the mediator is a lawyer and mediation takes place during the course of the litigation, the mediation is sometimes used as a ‘dress rehearsal’ of that litigation. Whist part of the mediation process is undoubtedly about destabilising one party’s case and showing them what might happen were the case not to settle at mediation, this can all too often be the parties’ only focus. This is when the skills of the mediator can really prove their worth in helping the parties to explore the issues between them, and assisting them in distilling the issues that make up the dispute and trying to envisage what a future without the conflict would look like and mean for them and their respective interests rather than a focus squarely on the legal merits of their case. Many mediator advocates still have to learn that a dress rehearsal and overly confrontational approach in mediation may not be in their clients’ interests in achieving what is ultimately the purpose of the mediation; a satisfactory settlement which the parties are able to come to themselves and to live with, having understood the realistic alternatives. By contrast to litigation, adjudication is a much cheaper and quicker process and is therefore put to considerable use. However, mediation has a number of advantages over adjudication, in particular: a. Only one dispute between two parties can be the subject of an adjudication unless the parties agree otherwise (which they rarely do). By contrast, mediation can involve multiple parties dealing with multiple disputes under multiple contracts, thus avoiding the need for a number of different but sometimes parallel adjudications to resolve all matters between the parties. b. As with litigation or arbitration, in adjudication a decision is imposed on the parties by a third party but in adjudication there is a real concern as to the quality of adjudicator that the parties may be stuck with. By contrast, mediation is a voluntary process whereby the parties have the space and opportunity to come to their own resolution. c. Adjudication is only of temporary finality, whereas the entire aim of a mediation is to bring about a full and final settlement of the parties’ dispute. d. Often adjudication is used during the course of the project when there may still be a considerable overlap between the parties’ needs and interests because, for instance, it might be in all parties’ interests to find a way to complete the project. If that is the case, a restoration of the parties’ relationship may be essential to realise those interests and meet the parties’ needs. In adjudication, there is rarely any meeting between the parties or even a hearing before the adjudicator, with the whole process being conducted on paper (often highjacked by the lawyers). By contrast, in mediation, the parties have the opportunity to explore, with the assistance of the mediator, their shared interests and needs and the shape of any future or continued relationship and to attempt to repair any emotional issues that have arisen which may have distorted the relationship. There is also a role for mediation after a party has the benefit of an adjudicator’s decision because it is only of temporary finality and litigation or arbitration may still follow, or there may be arguments as to the enforceability of the decision. The challenge for mediation in this scenario however is that the ‘winning’ party in the adjudication may feel they have all the negotiating power, even if the adjudicator’s decision was obviously wrong and the outcome in litigation or arbitration would be different. If the parties can nevertheless agree that mediation is still in their interests to try, the mediator is likely to be dealing with a very different dynamic between the parties than in other disputes where there has rarely been a third party already expressing a view (let alone a decision) on the dispute. It may be that the challenge for the industry in using mediation post adjudication is to gauge very carefully the timing of any mediation so that some seeds of doubt have been sown into the mind of the party who was successful in the mediation prior to the mediation being scheduled to take place. In summary, mediation is being used to a large extent in construction disputes; sometimes it is well used but sometimes the parties wrongly fall into the trap of treating it as similar to litigation in their presentation and preparation for the process and in so doing can miss some of the key benefits of the process, in particular enabling the parties to have the space and time to explore what is really at the heart of the dispute which is often very different to the legal issues involved. There remains room for more use of mediation to resolve disputes post adjudication but that presents its own unique challenges.
Being of a generation that was firmly opposed to such new fangled concepts as Alternative Dispute Resolution, and anything to do with the likes of counselling and in particular CBT, I thought it worthwhile to look briefly at where such whether such attitudes were justified. My own area of practice predominately involves professional negligence and probate claims. Traditionally under our vaunted adversarial system for litigation, hard pounding by counsel of the facts, with decision making being left to the Judge has been the order of the day. For a long time experts were regarded with distrust as trying to usurp the functions of the Court, and in the personal injuries sphere qualified surgeons and physicians (and not too many of them) alone were listened to (and not too much). A therapist was….well, way too alternative, not a medical practitioner, and therefore not an expert. I may add that the medical profession was only too willing to collude in the exclusion of the therapist, who might otherwise have disrupted their gravy train. Fortunately the advantages of the likes of CBT have become obvious to see; alternative it may be to traditional medicine, but mainstream it is in its beneficial effects. But what of ADR, Alternative Dispute Resolution, and in particular, Mediation? Parties are now all but compelled to go to some form of ADR before going on to trial. In the area of family disputes it can argued that they are actually compelled to seek Mediation. To some extent this approach was forced upon the court system which was becoming overloaded by the sheer volume of cases being brought. However in many situations, Mediation has more than proved it's worth. I have mentioned family disputes, and it can be argued that they have particular features. However much the same can be said of partnership disputes; I have often said that some people enter into business partnerships in the same cavalier manner that others enter into marriage; and at that without any form of licence or other documentation to show that what has actually happened or been agreed! And then to make up the hat trick there are probate claims; a recipe for expense, alienation between surviving family members, and anger, yes anger, towards the deceased for not having sorted his/her affairs out better, not having kept to what (s)he promised, maybe years ago, and/or not leaving to X a larger sum. The areas of disagreement and misunderstanding are endless, and frequently the feelings of resentment caused by individual family members one to another can never be healed. Litigation with its adversarial approach so often only serves to harden attitudes. Into this particular breach Mediation can and does step. It has the literally priceless advantage of bringing the warring factions together and encouraging them to come up with their own solutions. For all that the process is voluntary it puts a degree of pressure on the participants, doubtless prodded by the Mediator, to sit round the table, to consider what it is they really want, and then to talk, albeit initially through the Mediator. From this process emerges what they really want, and finally what they are prepared to take and what they think is fair. This frequently leads to solutions which no court could provide, and has the advantage that the end result is not court imposed. Throw into the mix that the parties have had to communicate with each other and to engage in a give and take process, and the potential of Mediation in this area needs no further elaboration. It can bring closure and reconciliation. Of course it does not always work; and of course it requires all participating parties to approach it with as open a mind as they can muster. I now turn to the challenging area of professional negligence claims. Mediation is often and rightly advocated for clinical negligence claims. I think here that a word of caution is appropriate. It is not appropriate for every situation; it is not a one size fits all type of option. It is undeniably of immense value where a child, or perhaps an elderly relative, has died. In such cases, where the monetary size of the claim may well not be that substantial, and where very strong emotions come into play, Mediation can and should have the most active role to play. It allows the bereaved parties to see the medical practitioners for what they are, not uncaring monsters, but ordinary human beings, maybe under pressure, doing their best to care for their patients, and conversely allows the medical professionals to see the sheer raw grief of the family etc. It enables the professional to communicate rather than stand off because their insurers demand that; they can express their sorrow and regrets, no matter where the fault lies. The cathartic effect of this should not be underestimated. On the other hand the limitations of Mediation may be seen in claims of maximum severity, especially where liability and/or causation are hotly in dispute. In such cases where complicated expert evidence from a raft of experts may well be required, and fine calculations have to be made, a neutral Mediator, who cannot overly intervene where parties have taken opposing stances, may not be the ideal forum. And so I move to what I term the more general area of professional negligence claims. Clearly, those disadvantages set out above in respect of clinical negligence claims also apply here. Where there are highly technical issues to resolve involving experts from diverse competencies, the Mediator’s task is not an enviable one. His/her difficulties would be compounded were there to be two litigants in person (which admittedly is unlikely) or, and this perhaps is the least desirable scenario, a Claimant litigant in person against an insurer backed Defendant. The Mediator could well find him/herself in an almost impossible position were the insured party to be trying effectively to pressurise the litigant in person to accept a clearly unfair compromise. That said, it is fair to pose the question; how often is such a situation likely to arise in practice? Very rarely indeed I would suggest. It is worthwhile remembering at this juncture that the vast majority of claims going through the courts are for relatively small sums, and are such where the costs are highly likely to exceed the quantum of damages in issue. Here there is an obvious case for Mediation; the costs and time advantages are clear-cut. A counter argument gets raised by the insurers to the effect that in a Mediation they will in reality be forced to offer something no matter how poor the Claimant’s case is. This it seems to me is a specious argument. Greater costs will be incurred through litigation! However also worth remembering is that for the professional there is no publicity, and for the individual Claimant there is removed the formality of the Court. The possibility of having whatever has gone wrong put right, maybe on a without prejudice basis, could also be attractive to both parties. Overall therefore, there is a strong case for rolling out Mediation as a highly desirable and genuine alternative to litigation in many professional negligence disputes, and as an avenue that should be investigated, holding as it does potential advantages for both sides.
As a young female from a working class background, my family were not able to afford holidays to various countries over the years, so we mainly stayed in London or visited Brighton for a day trip. So, when I was provided with the opportunity to travel to DUBAI (of all places) I jumped at this opportunity. The fact that I would be developing a new skill in this opportunity was a major bonus. I was lucky enough to be given this opportunity while working for ADR ODR International. On the course, we stayed at the Fairmont hotel, The Palm, Dubai. This hotel I can easily say was the best one I’ve stayed at, with hospitable and accommodating employees, amazing décor and beautiful views from the hotel room. While on the course, the 14 delegates from 10 different countries learned about themselves, each other and the secrets of negotiation and conflict management. We were taught about low context and high context as styles of approaching negotiation and the typical characteristics of each context. It teaches us that our style originates from our culture and where we grew up in the world – high context people are usually from hot countries with high community values / low context people are more from westernised countries. We went around the room and stated which context we all believed ourselves to be; with the vast majority stating they are high context. However, when given a question with homework to complete it, we all shared the results of the question that determined which context we in fact were. Low and behold the vast majority of the room were in fact low context. It goes to show that people can perceive themselves very differently to how they actually present themselves to the world. The experience in Dubai was eye opening to the way different cultures and people work and how they mix together in a group dynamic. It was very interesting to work with people from all over the world and build my own experience and I hope they all did the same. I learned a lot from the course and not only from the incredibly attentive and rather fascinating tutors but also from the other delegates in the room. The course itself was amazing; we were fed at several intervals within the day with delicious food and drink from deep fried rice balls to coconut cake (a personal favourite). We were given a buffet each day for lunch with the choice of hot and cold food with, of course, deserts. We sat outside for lunch and enjoyed the gorgeous November weather, still too hot for my easily burnt skin. I also never imagined I would be able to travel to Dubai, but fortunately I was lucky enough to receive this opportunity and visit Dubai. Although I worked hard and through myself into the course so I could get the most from the course, I also through myself into the culture and the sights, like the Dubai mall, which was absolutely beautiful and nothing I have ever seen before here in England. Dubai is something that I am incredibly lucky to have done (sounding like a broken record) and I am so grateful and thankful for this to have been an option for me. All I can say is if you have the opportunity to do something so incredible take the bull by the horns and do it.
2018 has been a year marked by enormous political difficulties that has delayed the implementation of structural and important reforms for the country. On the other hand, it has been a year in which the economy began to show signs of coming out of the vacuum created by the maladministration of previous governments. The level of confidence in the recovery of the business environment gave companies prospects of profit, and investments began to return. Inflation and the official interest rate fell to levels unimaginable up until a few years ago. In the legal sphere, private and alternative methods of resolving disputes and disputes outside formal litigation, namely arbitration and mediation, were further strengthened to expedite the outcome of conflicts that would take decades to be determined in the courts. Despite the continued efforts of the judiciary, the huge congestion of hundreds of millions of cases continues. Currently, there are over 100 million cases on the shelves, desks and offices of judges and ministers (judges of the supreme courts), according to the Justice in Numbers report of the National Justice Council. There is no physical way or adequate structure in the judiciary of resolving this mammoth workload. The backlog involve disputes between people, companies, governments and the entire society. The majority remain without any definitive solution or prospect of resolution within a reasonable time, contrary to the Federal Constitution. The long, and frequently vexing, processing of cases ends with an overly lengthy final decision that often does not do justice to those involved. The late Justice Ruy Barbosa once said, the Brazilian justice system is an “injustice” system. In this context, the legal tools for out-of-court settlement of claims has been increasing in the metropolitan centers of the country and have begun to gain oxygen. But it must be stressed, private arbitration and mediation are only recently subject of legal recognition and regulation. These forms of resolution are still unknown in regions away from the metropolitan centers. Even the judiciary, who are expected to give effective support to these new conflict resolution tools, lack knowledge of arbitration and mediation throughout Brazil. This has hampered the development of the practice. Despite this, there has been progress of these forms of dispute resolution in the last few years. A major institutional advance to expand the use of arbitration in Brazil was brought about by the labor reform, which came into force in November 2017. There was the introduction of labor arbitration, after several decisions of the Higher Labor Court ruling the non-arbitrability of individual work agreements. There is now a law in place allowing for the use of the alternative, albeit limited to disputes involving employees with a higher salary level. Consequently, mediation has also been more widely used in all employment disputes. Another novelty was the advancement of discussions in Brazil about the use of arbitration in tax disputes between taxpayers and taxpayers, based on the positive experience of this practice in Portugal. The interest of arbitration proponents, taxpayers, business entities and public administration authorities has grown for the adoption of legislation on the subject in the country. It is estimated that of the 100 million cases delayed in the Brazilian courts some sixty percent are against a state body. Of those, a great majority are tax cases. In April 2017, a meeting at the New Faculty of Law in Lisbon brought together a closed group of representatives of the federal tax administration, lawyers and Brazilian business entities. There was a long debate with teachers, arbitrators and managers of the Portuguese tax arbitration chamber on the success of this innovation for tax disputes. In September, the FGV Law School in São Paulo, Conima (National Council of Mediation and Arbitration Institutions) and the Rio OAB, with the support of FIESP and the CIESP Arbitration and Mediation Chamber, held a two-day seminar in São Paulo and Rio de Janeiro on tax arbitration in Portugal and the prospects for its implementation in Brazil. The discussions advanced so much that in October, a group of Brazilian specialists in Tax Law and Arbitration was formed to draft a bill to regulate the implementation of tax arbitration in the country. The objective of the group is the inclusion of this innovation in the projects of tax reform to be presented by the federal government to the Brazilian parliament in 2018. Last year was also marked by the creation of private mediation chambers - encouraged by the requirements of the Civil Procedure Code of 2015. Some of these chambers are accredited in the judiciary to act in judicial mediation. A caveat to this development however, is that it has also had a negative impact in the development of mediation. There is a growing number of unknown and questionable chambers adevertise training courses for arbitrators and mediators, award diplomas and certificates with the coat of arms of the Republic. Victims of the economic recession see these chambers and courses as an opportunity to retrain and begin a new career. The illegitimate marketing of arbitration and mediation courses is a crime and has been deplored by Conima to the CNJ, Public Ministry and police authorities. The strengthening of arbitration and mediation was also reflected in the increased volume of moots and events directed to students of law schools throughout Brazil. Teams of undergraduate students are trained, monitored by professors and specialists in arbitration and mediation. They all study and prepare a hypothetical case presented. At each competition, the best teams are invited to regional, national and international moots. The best-known is held every year in Vienna. Teams of young Brazilian students have shone in Vienna competing with teams from colleges around the world. All this has given students a closer look at arbitration and mediation. Institutions such as Conima, CBAr (Brazilian Arbitration Committee) and Arbitration and Mediation Center of the Brazil Canada Chamber of Commerce (CAM-CCBC), among others, have worked diligently to disseminate good practices of arbitration and private mediation in the country. Another point that gained strength were the events for discussion of doctrine, jurisprudence and the practice of arbitration and mediation. The expectation for 2019, in addition to deepening the discussion on tax arbitration in the country, is to further boost the use of arbitration and mediation for those seeking an adequate, safe and rapid solution to their conflicts.
The hot topic in the news lately within the arbitration world is the arbitration action launched by Donald Trump against former aide Omarosa Manigault-Newman. The case centres on the fact that Omarosa has broken the non-disclosure agreement (NDA), which prevented her from revealing details from private discussions held with the President. Arbitration is well known for its privacy and confidential element, which is highly favoured and a main reason for choosing arbitration as the route to solve disputes. However, these aspects are contrary to the actions of the President; he is keen to disclose his entire life and thought process online, via twitter. This fact has left him very unpopular, yet also presenting him with many right-wing supporters who express their agreement with his ludicrousness. Based on the choice of dispute resolution and the public nature of the President, it is clear that even when ordered to keep quiet, he may instead express his views of the arbitration process as they are happening. He is no stranger to a tweet or online post; this only heightens his social importance. He may therefore, find it very difficult to keep his social support in the dark about the whole procedure. I am sure his twitter feed will develop as the story does.
What is mediation? It is an effective way of resolving disputes without the need for the court’s intervention. A neutral third party – the mediator – will facilitate the mediation and will help all parties come to a suitable and satisfactory agreement. Mediation is a specific skill that aims to help people in the best way it can. In order to remain competitive in today’s market, successful companies will need to possess a clear vision for the goals they aim to achieve; inspiration to be innovative in their business ideas and approach to market growth; leadership to guide individuals towards success and teamwork amongst the employees to allow them to compete and keep up with the current global market. So why is mediation important in the workplace? Mediation within the workplace will make all of this possible; which will in turn, allow economic progression and a successful business. Harvard Business School and Europe’s leading business school, INSEAD, have researched and concluded that mediation is the most effective business tools of the 21st Century; along with intuition. Many of us in the office suffer negative effects of stress and anxiety almost everyday we come into the office, whether admitted or not. The high levels of stress reduce productivity and increases irritability, which may mean colleagues are becoming increasingly difficult to work with. Mediation can help to overcome these factors and cause a better working life for you and those around you. By introducing mediation in the workplace, will mean bringing in specified help for those who need it.
