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English

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Everything you need to know about mediationDo you know how to get the best out of mediation for yourself and your clients?Do you know how to set up, prepare and conduct yourself at mediation?Are you aware of the advantages and benefits of mediation, and of the pitfalls to avoid?In 1999 judges were given the power to suggest that opposing parties try mediation rather than proceed straight to litigation, thereby saving both money and stress. More than a decade on, and with the court system increasingly overstretched, mediation is being used as a valid, dynamic, confidential and extraordinarily effective process for dispute resolution.This Mediation Briefing will guide you through every aspect of the process, from deciding whether a dispute is suitable for mediation, through the arrangement and preparation process, and on to the actual mediation and its resolution. The Briefing also guides the reader through the different types of mediation, from its use in the workplace through to cases of clinical negligence.

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Strategic management

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Publié par	Thorogood Publishing
Date de parution	04 septembre 2013
Nombre de lectures	1
EAN13	9781854188625
Langue	English

Informations légales : prix de location à la page 0,3096€. Cette information est donnée uniquement à titre indicatif conformément à la législation en vigueur.

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First published in eBook format 2013 Thorogood Publishing Ltd 10-12 Rivington Street London EC2A 3DU Telephone: 020 7749 4748 Fax: 020 7729 6110 Email: info@thorogoodpublishing.co.uk Web: www.thorogoodpublishing.co.uk
© Alex Bevan, Guy Hollebon and Lucinda Bromfield 2010
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, photocopying, recording or otherwise, without the prior permission of the publisher.
This Special Briefing is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than in which it is published and without a similar condition including this condition being imposed upon the subsequent purchaser.
No responsibility for loss occasioned to any person acting or refraining from action as a result of any material in this publication can be accepted by the author or publisher.
A CIP catalogue record for this book is available from the British Library.
ISBN: 9781854187437
Acknowledgments
We would like to express our thanks to Judge Witold Pawlak and Phillip Bartle QC for their invaluable assistance in the section on mediation in other jurisdictions.
We are also grateful to Caren Hirst for her work researching the CPR.
We would particularly like to thank Jessica Armfelt for her work collating this handbook.
Finally, we would like to thank the publishers for allowing us to provide guidance on such an important subject.
The authors
ALEX BEVAN is a founder shareholder and technical director of ADR Group, one of the two main UK providers of ADR. Alex subsequently set up the Bristol Law Society Mediation Scheme. Alex has been instructed to act as mediator in over 250 cases. These have involved a wide range of commercial and civil disputes. Mediations have been conducted and co-ordinated in England involving foreign jurisdictions.
Alex is a major shareholder and a director of law firm Bevans which has offices in Bristol and London and specialises in employment and commercial litigation with an emphasis on financial services disputes. At the moment Alex is engaged in major litigation over mis-selling of geared traded endowment policies.
Alex has lectured regularly for various groups on ADR including Bristol Law Society, Central Law Training, Leicester de Montfort University, University of the West of England and the Journal of Personal Injury (Sweet & Maxwell) and has spoken at a number of Croner seminars on ADR issues. He has regularly addressed barristers’ chambers on ADR and its impact on the Bar. He has also given lectures in Spain, France, Denmark and Poland on mediation and has led a team training Polish judges in Warsaw with the aid of a Mediation DVD in Polish made by Bevans with the help of British Government and Warsaw Embassy funding.
He is the author of Alternative Dispute Resolution published by Sweet & Maxwell in 1992 and co-author of Mediation in the Workplace (WoltersKluwer UK) and Conduct and Discipline (WoltersKluwer UK).
GUY HOLLEBON is a Director of Bevans Solicitors specialising in all aspects of employment law. He is Head of the Employment Department and senior member of the ADR department. Guy undertakes a variety of employment cases.
Guy trained at Leonard Gray Solicitors, Essex, and qualified in 2001. He joined Bevans Solicitors in 2001 and became Director and Head of Employment in 2007. Guy has been an accredited mediator with ADR Group since 2004. He was appointed a part time Employment Judge in 2009.
Guy is a co-author of Mediation in the Workplace (WoltersKluwer UK) and Conduct and Discipline (WoltersKluwer UK).
LUCINDA BROMFIELD is an employment solicitor at Bevans, specialising in all aspects of employment law and alternative dispute resolution. She has a particular interest in representing clients at mediations and round-table negotiations. She trained in London with Collyer Bristow Solicitors and joined Bevans Solicitors in 2007. Before becoming a solicitor she worked in compliance and HR for large private and public sector organisations. She qualified as a community mediator in South London in 2006 and a workplace mediator with the TCM Group in 2007.
Foreword
I’ve been involved in mediation since 1994, both as a lawyer and as a mediator. My interest in mediation began in South Africa where the process was used very effectively in class action labour negotiations and commercial dispute resolution in the post-apartheid era. Since then I have had the privilege to work with many of the world’s greatest negotiators and mediators, both in the UK and internationally, in the further development of this truly amazing process.
Over these 17 years one clear theme has emerged: mediation is a dynamic and extraordinarily effective process when used correctly. Its flexibility, speed and ability to focus on solutions rather than problems make it one of the 21st century’s most powerful, client friendly services.
While tomes have been written on other types of dispute resolution, from litigation to negotiation, there isn’t much guidance on how to get the best out of a mediation, either for yourself or for your clients. I cannot stress more the need for parties and their representatives to be better prepared for the process and to understand the important role they play.
Over the next few years anyone involved in dispute resolution, especially in the UK legal profession, is likely to witness unprecedented change in terms of structure, compliance and regulation. Mediation will play a big role in the new environment, growing in importance and scope, and it’s vital that anyone involved in dispute resolution (whether for themselves or others) is prepared to use mediation and to get the best result they can from the process. This is why Mediation: a Practical Guide is such an important handbook. It’s a clear, concise guide that will answer all your questions, ensuring that you’re fully prepared to get the most from any type of mediation.
I thoroughly recommend this guide to you.
Michael Lind
CEO, ADR Group
President, Bristol Law Society
November 2010
Chapter 1 - What is mediation? How is mediation practised in the UK? Advantages and disadvantages of mediation Why is mediation successful? Some mediation providers in the UK
How is mediation practised in the UK?
History
Mediation has been used as a method of solving disputes since ancient times. But it was not until the 1990s that it began to be accepted by the mainstream legal community as a viable alternative to litigation.
Since the early 1990s, private sector organisations such as ADR Group, the Centre for Effective Dispute Resolution and the Academy of Experts have campaigned to have mediation accepted and recognised as ‘best practice’ in legal circles. Their work paid off, and in 1999 mediation was included in the Civil Procedure Rules (CPR) (see Appendix 6), also known as the Woolf Reforms. Judges were given the power to suggest to parties that they should mediate, rather than proceed straight to litigation. This was to avoid the potential waste of time, money and scarce public resources. With our courts overstretched, judges have begun to use this power. Now parties who refuse to mediate without good reason may have to pay some or all of the other side’s legal costs, even if they eventually win their case.
With the free mediation scheme for small claims cases, backed by the Ministry of Justice, and the National Mediation Helpline for County Court claims, mediation is now firmly fixed in our legal framework.
Attitudes to mediation
You will find that attitudes to mediation range from the full embrace of the convert to the extreme wariness of the unbeliever. Sometimes people have had bad experiences with mediation, or know those who have. You will almost certainly come across people who will tell you that mediation is a waste of time and money and that to suggest it is a sign of weakness. Believe them at your peril!
It is true that mediation is not suitable for every case and not all mediations end in settlement. However, mediation is a valuable tool that should be considered for every dispute, and understanding it is vital for anyone involved with litigation or dispute resolution.
We deal with whether or not a dispute is suitable for mediation and how to persuade unwilling parties in Chapter 3, ‘Getting the other side to agree to mediation’.
Costs of mediation
The cost of a mediation will depend on who is involved and how long it takes, as well as the value of the dispute. If a party wants to be accompanied by his or her lawyer, or an independent expert, then their costs need to be considered as well as the mediator’s fees. You will also need to think about where the mediation will be held and what refreshments will be provided in working out the total cost.
Mediators usually have an hourly fee and a daily fee, which vary depending on their expertise. They typically charge more for mediations which run over their standard hours (usually 9.30am to 5.00pm). An alternative method of charging that you may see is to link the mediator’s fees to the amount of money at stake in the dispute. This can be combined with the daily/hourly fee model.
On average, a daylong mediation with just the parties and a mediator will cost between £600 and £3,000 plus VAT. It is usual for the parties to split any costs between them, although in some cases it is usual for one party to pay all the costs. For example, the employer usually pays in employment disputes (see Chapter 3 , ‘Costs’).
There are also various organisations that offer free or cheap mediation, such as the scheme for small claims and various community mediation organisations.
As mediation is now seen as a normal part of the litigation process, it can also be available on legal aid or on legal expenses insurance.