mediation news
October 2004
Contents
·
Core
Conference 2004 – Monday 15 November 2004
·
Mediation
Skills Training and Mediator Assessment 2005 – 21-24 March and 13-15 April 2005
·
Law and
Litigation for Non Lawyer Mediators – Tuesday 2 November 2004
·
European Commission Code of Conduct for Mediators and Draft Directive on
Mediation
Core Conference 2004 – Monday 15 November 2004
“Finding Collaborative
Solutions: Expanding Mediation in Business, Government and Organisations”
With three weeks to go,
over 80 participants have already registered for the conference. They come from a wide variety of sectors, and
include doctors, representatives of the judiciary, the Scottish Legal Aid Board
and the Scottish Executive, construction specialists, solicitors and advocates,
in-house counsel, insurers and insurance claims managers, local authority,
national government and higher education representatives, bankers and
accountants.
We are pleased that
- a representative of the Scottish Legal Aid Board will attend the Professional
Indemnity / Insurance and Health Sector sessions;
- Alastair Thornton, former President
of the Law Society, will help facilitate discussion in the Commercial /
In-House sessions and
- Duncan Fraser, of City of
Edinburgh Council’s City Development Department, will be looking at
transport issues in the Construction / Transport sessions.
All of this augurs well
for achieving the aims of the conference, namely focussing on ways in which the
use of mediation can be encouraged specifically in a number of key sectors.
We are keen to encourage
attendance by all those who have an interest in helping to increase the use of
mediation and who wish to learn more about its great potential.
To view the Core
Conference Brochure please click here. If you would
like to register, please contact Lynne
Davies. Remaining places are now limited!
Mediation Skills Training and Mediator Assessment 2005 – 21-24 March and 13-15 April 2005
Core Coaching’s latest
course began recently. There are a
number of lawyers on this course, many being senior partners in large firms. Other professions, including medicine and the
higher education sector, are also represented.
Initial reaction has been encouraging:
“I have thoroughly
enjoyed the course and am looking forward enthusiastically to the next part. What I have learned so far is undoubtedly
valuable.”
“Just to say I thought
the course last week was superb and I was very inspired by it all.”
The next course will take
place in two modules: for four days from 21
to 24 March 2005 and for three days from 13 to 15 April 2005. The
first module serves as a full course in itself for those that wish to
understand how to manage conflict and differences in a variety of settings,
from the workplace to litigation to commerce, with special emphasis on the role
of the mediator. The course is heavily
interactive with many workshop practice sessions.
The second (optional) module
will enable those who wish to be assessed as mediators to undertake Core’s
assessment programme leading to the Core Certificate of Competence in basic
mediation skills.
More details will be circulated
soon but, if you would like to register your interest now, please contact Lynne Davies.
Law and Litigation for Non Lawyer Mediators – Tuesday 2 November 2004
Core is offering a new
course for the significant number of mediators from outside the legal sector. The course is designed to:
- Provide non-lawyer mediators with a working knowledge
of basic legal and procedural matters;
- Provide a framework for consideration of the costs and
funding of litigation;
- Encourage non-lawyer mediators to work effectively with
lawyers in mediation; and
- Give guidance in drawing up mediation resolution
agreements.
The course will also cover
how the Scottish court system operates and the basic principles of contract
law, issues which can arise at mediation such as confidentiality and legal
jargon, and crafting and drafting a Resolution Agreement.
The course will be led by
“Mediation is
uniquely appropriate for workplace cases because they involve personal
relationships. Unlike simple commercial
disputes where the parties may meet only once and never see each other again,
workplace conflict by its nature involves people who work together, sometime
every day.”
(Jeffrey
M. Senger, “Federal Dispute Resolution:
Using ADR with the
Core Coaching is
offering a one day course for HR
directors, managers and others who wish to learn more about understanding
and managing conflict and the involvement of an outside facilitator.
There are still one or
two places available on this course (now one day). Contact Lynne
Davies for further details and to register.
Remember that we also
have sessions on Employment / Workplace Mediation at the Conference on 15
November.
How to Maximise the Use of Mediation for Clients – a Course for Advisors and Representatives - Friday 26 November 2004
The latest in our
successful series for advisers and representatives who wish to be able to make
best use of the mediation process for clients.
Principally designed for solicitors and advocates, other professional
advisers may find this of real benefit also.
The course covers initial enquiries, getting a case to mediation,
preparation, negotiation strategies and the mediation process itself, using
workshop case studies.
“All members of the
legal profession who conduct litigation should now routinely consider with
their clients whether their disputes are suitable for ADR.”
(Dyson LJ,
Halsey v Milton Keynes NHS Trust [2004]
EWCA Civ 576)
Click here for a course brochure and here for a registration form.
If you would like more information please contact Lynne
Davies.
At the recent conference
of the Irish Commercial Mediation
Association, the audience was addressed by Mrs Justice Denham, a senior appeal court judge in Ireland. She spoke of the fundamental reorientation
which is taking place in the role which courts and lawyers play in the
resolution of conflict. She acknowledged
the change of mindset and that this may not be easy for some, especially an
acceptance of the parties’ involvement in determining the outcome. She said that important to a modern
commercial centre was a commercial court with a modern approach. Also essential to the working of that
commercial centre was an established system of commercial mediation.
The
Attorney General for Ireland, Rory Brady SC, addressed the
conference and said that there was no doubt that mediation has become an
important part of dispute resolution in Ireland.
The
Commercial Judge, Mr Justice Kelly, observed that there was no need to
persuade the courts in
The
EU Commission representative, Henrik
Neilsen, who is responsible for the draft EU directive on mediation, spoke
of mediation as valuable in its own right, not as an alternative to overloaded
courts. Mediation needs to be placed on
an equal footing with other dispute resolution mechanisms. Central concepts, such as confidentiality of
the process, need to be protected by legislation.
A stirring contribution
by two senior executives of the Bechtel
Corporation underlined why clients use mediation. “Mediation
makes so much sense”, said one, “it’s
painful.” He stressed key benefits
being the ability to retain control and manage risk, along with preserving and
fostering business relationships. According
to him, mediation and other ADR techniques can be applied to almost every situation.
·
Mona Al Khatib
v Abdullah Marsy & Others (2004) CA (Civ Div) (Thorpe LJ, Wall LJ)
5/10/2004
The Court of Appeal has
re-emphasised the importance it attaches to the resolution of disputes by means
other than court. Lord Justice Thorpe made
two significant observations:
·
the court having encouraged mediation in a
contentious family dispute, it is vital for there to be judicial supervision of
the process of mediation. The selection
of an appropriate mediator in a difficult case is crucial.
·
there was no case, however conflicting, that was
not potentially open to successful mediation, even if mediation escaped the parties
during the trial process.
·
Reed Executive
plc v Reed Business
In his judgement in the
Court of Appeal, Sir Robin Jacob LJ observed:
“A good tough mediator
can ring about a sense of commercial reality to both sides which their own
lawyers, however good, may not be able to convey.”
“It is open to either
side to make open or Calderbank offers of ADR.
These days there is no shame or sign of weakness in so doing. The opposite party can respond to such
offers, either openly or in Calderbank form.
If it does so and gives good reason(s) why it thinks ADR will not serve
a useful purpose then that is one thing.
If it fails to do so, then that is a matter the court may consider
relevant (not decisive, of course) in exercising its discretion as to costs.”
(a Calderbank offer has a
similar effect to a Scottish tender)