news
·
The Role of
Lawyers in Mediation
·
Advising and
Representing Clients in Mediation: 9 June
·
Mediation Skills Training: Early Bird
reminder
·
Core Dinner:
Celebrating 5 Years
·
Drafting Dispute
Resolution Clauses
·
Legal Profession
Complaints Process
“Once again, I am
grateful for the assistance and support shown throughout the mediation which
certainly went a long way to achieving a resolution to the claim. With the
excellent record I've had with Core and mediation as a process, I will continue
to consider this form of ADR in all the claims I
handle!"
Paul
Crawley, Profin Claims Specialist, Royal & Sun
The Role of
Lawyers in Mediation
In some mediations, parties engage without
using lawyers at all. These are often management or organisational problems
where the issues raised are not specifically legal or where the stage for the
intervention of lawyers has not yet been reached.
In many disputes, however, legal advisers play a vital role.
One mediator
recently had this to say: “The
involvement of the solicitors was crucial. They understood the dynamics of
positive engagement and were able and prepared to negotiate constructively,
looking for solutions rather than yet again reinforcing the polarised
positions of the litigation. They were able to guide and advise their clients
so that they seized the opportunity of an outcome which brought matters to an
end. It was a good example of professionalism at its best.”
Lawyers are
often viewed as advocates for their clients’ cause but, as Bernard Mayer comments in his recent book,
Beyond Neutrality (Jossey Bass), what we mean by advocacy might be re-assessed. “Advocates
are essential to the functioning of conflict. Good advocates are skilled in
conflict engagement: raising conflict, negotiating and resolving conflict. ….We
associate advocacy with an adversarial approach, with positional negotiation,
with “playing hardball”, with escalatory tactics.” But “an effective advocate can help with more than just the combative
elements of conflict.”… “The role of
the advocate can be complicated, tricky, and not at all as straightforward as
it might seem….Effective advocates almost always need analytic-strategic,
communication, problem-solving, counselling, and
negotiating skills” (pages 248-9, 252-3).
Being
effective in mediation
·
effective lawyers prepare well
·
they consider commercial, reputation and business risks, as
well as carrying out a legal risk analysis
·
they help clients to assess monetary and non monetary costs
and the time the dispute will take
·
they are open and prepared to discuss issues frankly; they
will seek to find out as much as they can about the other side’s needs and
concerns – and will disclose information if helpful
·
they will seek to work with advisers on the other side and
avoid having fixed ideas about the outcome – or about their opposite numbers
·
they are flexible in their thinking, use constructive
language and involve their clients fully in discussion
·
effective lawyers assist clients to assess what is in their
best interests by keeping the big picture in the forefront and remembering that
ongoing unresolved conflict usually carries significant opportunity cost (as
well as direct expenditure)
·
they recognise that the
factors in a decision whether to settle or continue in court are varied. As one
lawyer put it to a client: “From a
litigation perspective, I could advise you to press for more, but from a human
point of view, given your business and career prospects, I can see why you
would wish to bring this to an end now”
·
effective lawyers are
courageous, being prepared to absorb their clients’ frustrations and helping
them to make tough decisions. One solicitor apologised openly to a client on
the other side for the effect that a letter from his firm had on that client.
This exemplified the integrity and honesty which characterises the profession
at its best. It was also a turning point in the dispute
Improve
your ability to perform well in and advise on
mediation by attending one of Core’s upcoming training courses:
Advising and Representing Clients in Mediation
Friday 9 June 2006 CPD 7 hours A few places left
Our one day course for
solicitors, advocates and other legal advisers who wish to learn more about the
process of mediation and how to make best use of it for clients. Experience
mediation in practice and learn how to prepare yourself and your client.
Click here for more information or click here to register online - or contact
“You are the first
lawyer to get me a result” a client recently said. Why? Because
her solicitor used mediation.
Mediation
Skills Training
Tuesday 26 to Friday 29 September 2006 CPD 28 hours
Register for our flagship
course in September (with optional Assessment Module from 8 to 10 November). Click here for more information and click here for the course prospectus. Click here to register online.
Early Bird fee extended for all who register for both modules
by 12 June.
The quality of
participation in our last course was very high as participants from a number of
disciplines and countries came together with our international team of coaches
to learn and practice skills to manage differences and disputes in various business, organisational and professional settings.
“Excellent course. Entertainingly
presented with high quality trainers. Has given me more cause for thought than most other courses I have attended. I
increasingly became convinced over the course that mediation can and does
work.”
Alan McGregor, Cairn Energy
The demand for places
exceeded supply on our last course. Register early to secure your place!
For more information, contact
Mediation in Planning
Core recently acted as facilitator in a meeting involving
developers who had submitted a planning application in a significant project and
objectors to the application.
The meeting resulted in constructive dialogue in which each
participant was able to explain how it saw things, to understand the areas of
concern on all sides and to identify what was actually contentious. This
provided a platform to enable parties to reassess their positions and look at a
range of options.
Core Dinner: Celebrating 5 Years
Our annual dinner, at which Core celebrated its fifth anniversary,
was a resounding success. Our special guests, two of Core’s international panel
of mediators Bill Marsh and Miryana Nesic, brought us a glimpse of developments with
mediation around the world.
In conversation with
Click here
to read more on our news page about Core’s five years of leading the field and
making a difference and here to read the Scotsman newspaper article
(9 May 2006) featuring Bill Marsh, as one of the most experienced mediators of
high profile cases in the UK.
Drafting Dispute Resolution Clauses
Miryana Nesic’s recent half day course
attracted favourable comment:
“Miryana
provided us with some first class material this morning and her presentation
was excellent! I was impressed by the degree to which she had clearly done her
homework on the Scottish scene. She is to be congratulated on managing to hold
my attention on her own for over 4 hours with only one coffee and a 5 minute break!”
David Kidd, Biggart Baillie
We expect to hold this workshop
again in the future as part of our new portfolio of courses, which aims to
introduce and develop new approaches to problem solving. Look out for our Risk
Analysis workshop in the autumn!
Legal Profession Complaints Process
Core recently made a submission to the Scottish Parliament’s Justice 2 Committee, which is examining the
Legal Profession and Legal Aid (
Core welcomed the reference to mediation in section 6 of the Bill.
We indicated that, in our experience, and in the experience of others, many
complaints, whether against the legal profession or others, arise because of
frustration or lack of acknowledgement of difficulties which have arisen. Many are symptomatic of underlying problems.
Many of these complaints could be addressed (and possibly solved quickly and
cost-effectively) by a process which encourages early communication and
discussion of the issues.
Core submitted that the use of mediation could be significantly
expanded to deal with many complaints, at source and as they are handled by the
proposed new Scottish Legal Complaints Commission and the professional bodies.
Click here to read Core’s submission in full.
International Links
At the
Other sessions featured the use
of Decision Trees in risk analysis, the use of mediation in health sector
issues, ethical challenges for mediators, breaking impasse in negotiations, the
psychology of persuasion and a host of other topics. In one session, in which
there was standing room only, experienced mediators, accompanied by a jazz
saxophonist, likened the techniques they use in mediation to those of
improvising jazz musicians!
Core in the Press
·
The Firm Magazine (May
2006), in its Power 100 list, had this to say: “As one of Scotland’s primary advocates of the mediation process,
·
Click here to read
Upcoming
Events
- Pamela Lyall is a speaker at
the CLT conference on Medical Negligence on 26 June
- Pamela Lyall, together with
Alastair Thornton, another of Core’s experienced mediators, leads a day
long workshop in the Professional Competence Course at
Core in
the Community
Our sponsorship of Scottish
Cricket’s Youth Festivals and our newly established Young Mediators Forum mark the first of our initiatives to support
emerging talent in different areas of life in
Recent
English Decision
Burne and "A" [2006] EWCA Civ 24
Parties in a medical negligence matter should enter into
mediation with a view to ending the "anxious and distressing case".
Lord Justice Sedley observed that the case "calls out for alternative dispute
resolution." "Both parties need to take stock of their position and
to enter into mediation in the light of it. No further step should be taken in
the remitted action until this has been done."
Lord Justice Ward added:
"On the issue before us
there are powerful arguments either way and I express
no view whatsoever as to the eventual outcome. I do, however, feel very
strongly that this is a case which must be referred to alternative dispute
resolution before it is restored for the re-trial. Both parties should take
stock of the strengths but also the weaknesses of their respective cases which
are now plain for all to see and I hope mediation will bring a swift conclusion
to a tragic event.”
To read the whole judgment, click here.
To access Core’s news page, click
here.
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