mediation

Mediation Guide: Russell Evans

By Russell Evans, Manager of Resolve UK[i]

Mediation

Mediation is a private and confidential process focused on dispute resolution involving the appointment of a qualified Mediator to assist all parties to resolve their dispute. Mediation is highly effective in resolving disputes and is encouraged by the Courts & Judiciary. It often saves significant cost, stress and time.

Mediation Process

The mediation process is flexible. It can be designed to fit the circumstances of the dispute and the parties. It will usually involve private meetings between a party and the Mediator to discuss and consider issues and explore settlement options as well as joint meetings where these are approved by the parties. Comments made by any party in this process are confidential and can not be repeated in court. The process is designed to enable parties to TALK, THINK & EXPLORE SOLUTIONS in a safe environment. Settlement is concluded by a Settlement Agreement set out in writing which is duly signed.

Pre Action Protocols

Pre Action Protocols & Practice Directions are in place requiring parties to consider Mediation prior to going to court. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

Para 1. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings.

Para 8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

ADR

ADR means Alternative Dispute Resolution. It is an alternative to determination by the court. Mediation is the most effective and most common form of ADR process used.

Court Rules

The Civil Procedure Rules apply to all cases where court proceedings have been issued. Parties are obliged once again to consider mediation.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(d) ensuring that it is dealt with expeditiously and fairly;

(f) enforcing compliance with rules, practice directions and orders.

1.2 The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the Rules

1.3 The parties are required to help the court to further the overriding objective.

1.4

(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes –

(e) encouraging the parties to use an alternative dispute resolution procedure

Sanctions for Failing to Mediate

The Court has power to and frequently imposes cost sanctions against parties who refuse to mediate.

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

Lord Justice Briggs:

1. An unreasonable refusal to participate in ADR has, since 2004, been identified by this court as a form of unreasonable conduct of litigation to which the court may properly respond by imposing costs sanctions: see Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002.

2. The Halsey case was the first in which the Court of Appeal addressed, as a matter of principle, the extent to which it was appropriate for the court to use its powers to encourage parties to civil litigation to settle their disputes otherwise than by trial.

24. In the nine and a half years which have elapsed since the decision in the Halsey case, much has occurred to underline and confirm the wisdom of that conclusion.

34. In my judgment, the time has now come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable.

56. Finally, as is recognised by the weight placed on the judge’s decision in the passage in the ADR Handbook to which I have referred, this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR ……. The court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres.

Attempts to Avoid Mediation

The court is very weary of attempts to avoid mediation and these are usually given a short shrift response. Indeed Mr Justice Turner in Laporte characterised refusing to mediate as a ‘high risk’ strategy.

Burchell v Bullard (2005) EWCA 358

Lord Justice Ward

41. The stated reason for refusing mediation that the matter was too complex for mediation is plain nonsense.

Lord Justice Rix

50. I agree that mediation here would have had a reasonable prospect of success and that a party cannot rely on its own obstinacy to assert that it would not.

Laporte & Anor v The Commissioner of Police of the Metropolis [2015] EWHC 371 (QB)

Mr Justice Turner quoting Mr Justice Lightman - Hurst v Leeming [2003] 1 Lloyd's Rep 379

53. ‘what appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution.’

Other Judicial Dicta

Burchell v Bullard (2005) EWCA 358

Lord Justice Ward

43. Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued.

Lord Justice Rix

50. The court is entitled to take an unreasonable refusal into account, even when it occurs before the start of formal proceedings.

Oliver and another -v- Symons and Another [2012] EWCA Civ 267

Lord Justice Ward

53. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.

Consequences of Failing to Mediate

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

Sanction Applied - Party penalised £250,000 Costs

Laporte & Anor v The Commissioner of Police of the Metropolis [2015] EWHC 371 (QB)

Sanction Applied - Party penalised One Third of Costs

Rolf v De Guerin [2011] EWCA Civ 78

Sanction Applied - Party penalised All of Costs

C 2018 Resolve UK

(This note is intended for outline information purposes only. It does not constitute or purport to be legal advice)

Russell Evans is a Director & Immediate Past President of the Hampshire Law Society. He is a full time Mediator and has judged the Finals of both the UK & International Mediation Competitions.

At ReSolve UK we have experts in: Property Disputes/ Business Disputes/ Insurance Claims/ Partnership Disputes/ Employment/ Construction/ Professional Negligence/ Sport/ Music & Entertainment/ Shipping & Maritime/ Care/ International Trade/ Director & Shareholder/ Inheritance Claims & Probate/ Trusts & Estates/ Charities/ Workplace/

Russell Evans russell@resolveuk.co.uk Mob: 07986 550969

www.resolveukmediation.co.uk


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Mediation: Packing the Punches

By Russell Evans, Mediator & Lecturer

The Mediation Battleground: Getting to the Ring

After recently successfully concluding mediations for a world champion boxer, title contender and manager as well as a premiership football club, leading university and the Board of a Government Agency I have had cause not only for thought but time to reflect.

Mediations are focused on dispute resolution. Not all Mediations of course are the same. There can be many flavours and nuances and as experienced mediators will tell you similar disputes can play out in very different ways. As mediators we forever have to adapt to the circumstances and the situation which unravels before us.

There can of course be much pageantry and showmanship before the bell rings on the day of the mediation. Each mediation and indeed every fight comes with its own history.

And So the Bell Rings

And so the bell rings and we are off. In reality much mediation work has already been effected before the bell sounds. Parties of course can adopt many changes of position and stance: orthodox; south paw; counter punch as well as downright unconventional and sometimes even a jab, hook, cross and upper cut are displayed. There is frequently a sub plot. Mediations often unravel in intriguing ways. Merlin himself with his many potions and incantations may even be impressed; conjuring spells, directing focus, calming flashpoints.

Beyond the Scars

Mediations can certainly be challenging. They are certainly not a stroll in the park whether in London, Paris, Berlin or the leafier suburbs and can require a great deal of resolve and strength of purpose. Mediations often however present the best opportunity for parties to explore and resolve their dispute in the quickest, most diplomatic, least stressful and least injurious of ways. In any fight or gladiatorial contest both parties are invariably hurt and it is rare for any party to emerge unscathed. We can often lose sight of this amidst the emotional battle cries and the call to arms.

Surprises

Surprises and curve balls can abound and are often thrown into the mediation mix not only with new material disclosure but astonishing new revelations. It can often be as well to find this out before the ‘certainty’ of the trial. A recent revelation concerned a battling Lord, whistle-blowing as well as the Cabinet Office. Fortunately for all this did not play itself out on the front pages of the press.

High Noon

On occasion mediations have resembled more of a cold war James Bond spy plot rather than a classic exploration of issues and diplomatic engagement. The boxing mediation at times had all the atmosphere of the OK Corral albeit without colt 45s. The mediation concluded with lawyers and mediator apace marching up Chancery Lane and signing the settlement agreement in the street outside of our hallowed hall. One of the lawyers involved in the ‘boxing ring’ intended to wreak his wrath or more fortunately relief the following day on a racing circuit with or without the classic Aston Martin. James Bond eat your heart out.

The Beautiful Art: Using Diplomacy

As Mediators we are there to serve all parties, to use, adapt and adopt whatever mediation methods and techniques help the parties on their path to resolution. Mediation can sometimes be a shadowy world but one in which much can be achieved behind closed doors.

Finding a Language: Enabling Communication

As Mediators we often enable discussions to take place which would not ordinarily happen. We can facilitate discussions between parties, discussions between lawyers and indeed the release of documentation and information in a diplomatic way. Mediation provides the safety of confidentiality which surrounds the mediation process. Comments can be made to the mediator that you may not want a judge or indeed the other party to hear. Comments made at the mediation also can not be repeated in court. The court will often simply see the settlement fait accompli and in many cases the court process can be avoided altogether.

Protecting Confidentiality

Recent mediations have presented opportunities for both lead front and back page stories as well as opportunities to initiate further speculation and conflict. I have had numerous lawyers and parties tell me that there were no prospects of resolution only to be pleasantly surprised. Some combatants have even walked away linked arm in arm.

Beyond the Rules

Mediation is of course a part of every lawyer’s dispute resolution armoury and its consideration is mandated under both Pre Action Protocols and the Civil Procedure Rules. Its timely adoption can sometimes save not only months but years of heartache.

The Mediation World

What then of the Mediation World? Mediation is certainly high on Lord Briggs agenda as most will know. Some of you may even have had the pleasure of attending Lord Briggs talk in November 2017. The Civil Justice Council for its part has backed the presumptive use of mediation as set out in its 98 page report. At the CIArb Mediation Conference in September 2018 focus was placed on topics ranging from; high conflict parties; challenges and dilemmas to mediation mastery. We have sadly now lost one of the true mediation masters David Richbell a friend who a number of you will know.

I recently had the pleasure of attending another Talk at the Oxford University Policy Institute given by another friend Dr Nikita Chiu about War & Peace & Space. As a species we will certainly return to the stars and other celestial bodies. Mediation in Space however may be some way off. I don’t think that I will become an astronaut just yet.

Finding Solutions

On the earthly stage whether your dispute is commercial, property or contentious probate for some great institution or other greater cause we perhaps need to consider not only ADR but IDR ‘intelligent dispute resolution’. There may be fights to be had but often cleverer ways to achieve your goal. Even a boxer will pick his fights carefully.

Fighting the Good Fight

We are all fighters in our own way. Resolution of course can be worthwhile fighting for.

C 2018 Resolve UK

Russell Evans lectures on Mediation for the Law Society, RICS & CISI. He is a full time Mediator and has judged the Finals of both the UK & International Mediation Competitions.

Russell has conducted mediations involving ftse companies, government agencies, premiership football clubs, world sports champions, national charities with royal patrons as well as the family of a Law Lord.

Russell Evans russell@resolveuk.co.uk Mob: 07986 550969

Resolve UK: Ministry of Justice approved Mediation Provider

At ReSolve UK we have experts in: Property Disputes/ Business Disputes/ Insurance Claims/ Partnership Disputes/ Employment/ Construction/ Professional Negligence/ Sport/ Music & Entertainment/ Shipping & Maritime/ Care/ International Trade/ Director & Shareholder/ Inheritance Claims & Probate/ Trusts & Estates/ Charities/ Workplace/

Ministry of Justice Approved Mediators

Finding Solutions For You

www.resolveukmediation.co.uk


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Negotiate, Litigate or Mediate?

By Russell Evans, Manager of Resolve UK[i]

If you have come to this website it is likely that you are involved in a dispute and seeking assistance. It is likely that you have not been able to negotiate a successful resolution of your dispute, have not been able to convince your opponent of your position or legal rights and are unable to satisfy your opponent of the remedies or redress to which you believe you may be entitled.

You may feel that your words have fallen on stony ground and that your attempts to negotiate have been frustrated. Maybe of course you have simply not been heard. There may also be a gulf between you not only in understanding but perspective.

You are probably feeling frustrated. What can you do? You collect your thoughts. You can of course try again and hope for a more positive response. You may however feel that you have reached an impasse. There is of course the option of litigation. Sometimes you may have no choice.[ii]

Litigation of course may bring its own ordeals and demands, including the need to prepare court papers, the need to attend at court before a judge and the need to facilitate argument and advocacy in your cause. Added to this process is the work of preparing and collating evidence, obtaining and finalising witness statements and invariably a good deal of stress and delay. Litigation is usually both lengthy and costly. The outcome is also out of your hands. Control ultimately rests in the hands of the judge and the judge’s decision will be handed down and imposed on the parties. Litigation in consequence has often been likened to a war focusing on a fight between the parties.

Mediation by contrast is a very different process. Mediation is both party and solution focused. In a mediation the parties to the dispute appoint an independent professionally qualified mediator to assist them. The mediator assists the parties to review their dispute, to consider options, to facilitate discussions and to explore and ultimately find solutions. The mediation typically takes place over the course of 1 day. It may last a few hours or may be longer where there is a more complex and involved dispute. A solution which is agreed by the parties is usually found. Indeed mediation has an 80 % success rate.

Mediation is far quicker and far cheaper than litigation. Mediation is also a private and confidential process. Parties to the mediation can have separate confidential discussions and meetings with the Mediator. Indeed the mediation process is flexible and can adapt to suit both case and party needs. It is not hemmed in by the formality of a court room.

Mediation can be used both before and after the commencement of court proceedings.

The Courts, the Judiciary and Government all support and recommend the use of mediation as a highly effective mechanism for resolving disputes.

Here is what Lord Justice Ward had to say in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

Courts also now routinely consider the reasonableness of conduct of the parties to a dispute and proportionality when making cost orders. Indeed the courts can impose adverse cost orders on a party who fails to mediate. Here is what Lord Justice Rix had to say in the Court of Appeal case of Rolf v De Guerin (2011) EWCA Civ 78:

‘Parties should respond reasonably to offers to mediate or settle and…their conduct in this respect can be taken into account in awarding costs.’

Judges are in fact required to consider the use of mediation under the Civil Procedure Rules.

Under the Ministry of Justice Scheme to which Resolve UK belongs the cost of mediation can start at just £50 or £100 per party for lower value claims. Under the scheme there is a sliding scale depending on the size of the claim. For claims below £50,000 the mediator’s fee is fixed at a maximum of £425 per party for a half day appointment.[iii] Some low value claims can even be dealt with over the telephone. In most cases a mediation venue will be required. Mediation rooms can be provided by Help4Lips.

Mediation has a wide variety of uses. By way of example it can be used to resolve:

  • Property disputes including claims as to ownership as well as boundary and construction disputes

  • Disputes about wills and probate and claims for inheritance

  • Insurance claims – fire, flood and theft as well as personal injury

  • Business and trade disputes including disputes between business owners, partners, directors and shareholders

  • Employment claims including grievances and claims for discrimination and unfair dismissal

  • Family disputes including financial division and child access

There are of course many other types of disputes where mediation can assist. It is impossible to list all here. If you would like to resolve your dispute Mediation could be right for you.

[i] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk

[ii] There are defined time limits for bringing court actions and tribunal claims.

[iii]  Scale as at July 2013


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Family Law Mediation

– what you need to know

 

Family mediation is a form of Alternative Dispute Resolution (ADR) which helps you reach decisions about things that are important for you and your family, without having to go through the court process.

The Benefits of Mediation

Mediation gives you the opportunity to take your time and think about the issues that are important to you, whether it be arrangements for your children as they grow up, how to deal with money within the marriage or options of where you will live. The process moves at your pace, which ensures you can carefully consider each issue rather than rushing through it.

Mediators will listen to you to find out what is important to you, and help you make your own choices about how to move forward. Once you and your partner are satisfied with the decisions you have made, you can then instruct a solicitor to complete the legal formalities.

You can also consult your own solicitor during the mediation process, to check that the choices being taken are in your best interests.

Mediation Information & Assessment Meeting (MIAM)

Mediation has become a more central part of family law since the changes in law which now require you to attend a Mediation Information & Assessment Meeting (MIAM) before issuing an application to commence financial proceedings or proceedings under the Children Act. This assessment meeting gives you the opportunity to see how mediation works, and allows the mediator to work out with you whether mediation will be suitable for you and your family. The mediator should discuss how many sessions you may need, how much they cost and whether you are eligible for legal aid to pay for mediation.

In most circumstances, whomever is applying to the court for a financial order or a child arrangements order will have to attend a MIAM. The other person involved is also expected to attend, but they do not have to go to the same meeting as you. There are exemptions, particularly if domestic violence has arisen within the relationship.

If everyone agrees at the first appointment that mediation would work well, you will book further mediation sessions. It normally takes between three and five meetings to come to an agreement, depending on the issues in question.

Mediating with Children

Older children are now also becoming part of the mediation process, if mediation is about child arrangements. If the mediator you have chosen is happy to do so, they can talk to the children of the family about what they would like to happen, so that the parents can make decisions which take into account their children’s wishes as well as their own.

 

Alison Bicknell


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Resolving Disputes: The Wonders of Mediation

After many years of curiosity, my eyes were finally opened when I recently participated in a mediation. The dispute concerned a property which had excited 3 years of grief, 1 year of court time and tens of thousands of pounds in costs.

I am a sceptic by nature. During my lifetime I have suffered many trials and tribulations, witnessed and experienced many injustices. Indeed ‘Justice’ can often seem elusive and out of reach.

Mediation had been recommended by the Judge. Indeed mediation is recommended by the Courts as a cheap, fast and cost-effective way of resolving disputes.

At the outset, however, I had my doubts. I had rated the mediator’s chance of helping both parties resolve, what appeared on its face, an intractable dispute, which had proved beyond the reach of warring parties and had taxed the minds of their lawyers for years, as hopeless. And yet within 1 day and the expert crafting hands of an experienced mediator, the deed was done and the matter was finally resolved.

Am I astonished? Yes. Can mediation help you? Only you can decide. I, however, am now convinced.  

Prior to the mediation, it had frequently felt as if the parties were banging their heads against an unresponsive, impenetrable and impassable brick wall. The mediation, however, was responsive, fluid and dynamic. The Mediator stepped across the divide and reached out to both sides, creating pathways for both parties to explore issues and enter into a sensible and productive dialogue. Most importantly the mediator listened. The Mediator will also listen to you.

It is clear to me that Mediation has a leading role to play in the resolution of disputes. The word should be spread loud and clear. Mediation could help you.

Be warned those of you who avoid mediation. Courts can impose punitive sanctions against parties who do not mediate (see PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288). Indeed there are many stories of otherwise successful parties both Claimants and Defendants losing all or a significant part of their costs for failing to mediate.

Here is a final word from the Judiciary. Mr Justice Norris in the recent case of Bradley v Heslin [2014] EWHC 3267 (Ch) said:

‘I add my voice to that of many other judges who urge that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to  trial.’

In our case the Mediator certainly created the platform and weaved the dynamic framework upon which resolution was achieved.  

Can mediation work? Yes. I have tried it and know. Mediation successfully resolves most disputes. Mediation could also work for you.

My observation is that mediation hearings create an entirely different dynamic. It is not about winning; it is about reaching an agreement. Therefore, resolution is the only victory.

As told to Russell Evans of Resolve UK Mediation by Jeff Lampert


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.