Core Mediation News

Scottish Legal Awards

Glasgow Forum

Discussion with the audience focused on the value of securing judicial support and changes in the Rules of Court, the importance of both pursuers' and defenders' solicitors understanding the value of the mediation process (and neither seeing it as a sign of weakness but a willingness to find a sensible result) and the need to continue the process of education and raising awareness amongst lawyers and clients of the value of the mediation process.

Raising Awareness: Course for Advisers

In recent mediations, feedback about the role of the legal representatives has included comments about what is valuable and what might hinder progress:

• Firm but not antagonistic; co-operative and professional; in joint meetings carefully presented case without inflammatory language, in private focused on client's needs and interests; excellent negotiating skills.

• Tendency towards theatrics/courtroom style; positional bargaining/adversarial approach unhelpful; tended merely to posture, unhelpful in advancing process; unrealistic in assessment of client's prospects.

It is vital to the success of mediation in Scotland that the legal profession and other advisers are comfortable with and understand the process. We hope that many of you will take advantage of this opportunity. There are still places left on the course - please contact Maxine Gomersall, our Administrator to secure a place, or for more information (maxine.gomersall@core-mediation.com).

Case Examples

1. A commercial project was entered into. Party A relied upon the professional services of Party B in order to provide advice and assistance in the development of the project. The project was designed to generate significant profits over many years. For a variety of reasons, the project was not successful and the parties had a rather acrimonious separation. The result was court action in which Party A sought hundreds of thousands of pounds from Party B, alleging professional negligence and substantial loss of profit. Some 6 or 7 years after the events which led to the allegations, the claim was heading towards a court hearing which might have lasted for two or three weeks - or more, and cost tens of thousands of pounds - or more. The parties decided to try mediation. A mediation was arranged and attended by lawyers for each side with experts and other advisers to assist, in addition to the parties themselves. The parties themselves were involved throughout all the discussions. At the end of one day of the mediation process, the parties reached an agreement which brought the dispute to an end, closure to the long-running conflict and an end of further expenditure. The total cost to the parties of the mediation service, including arrangements, preparation, venue costs and mediator costs was less than £5,000.

2. This was a situation in which parties were involved in the retail distribution sector. There was an issue about intellectual property rights, including trademarks, as well as allegations concerning possible defamation and access to customers. The matter had been dragging on for a considerable period of time, with court actions raised. It is fair to say that the parties and their advisers came to mediation without expectation that the matter could be resolved. After a day of intense negotiations and overnight to reflect on possible options, the parties reached a solution which focused on commercial interests and which was designed to benefit the businesses in a way which was beyond the parties' contemplation when the mediation process began.

3. This was a dispute involving a fairly senior public sector employee. There was a serious breakdown in communication between the employee and the employers. Claims were made which would have resulted in possible court action, reference of the matter to an Employment Tribunal and other possible avenues. Substantial sums of money were involved and there were questions about whether or not the employee could remain in employment or perhaps be moved to another job. There was a lot of anger on all sides and concern about the way in which the dispute had escalated. In the course of one day, the parties were able to find a solution which avoided the matter being taken to an employment tribunal or an action being raised in court. The parties had been given an opportunity to express how they felt about the situation which arose and to move on from what was becoming an intractable and damaging conflict.

4. A young mother died in hospital after a routine operation, leaving her husband and two children. Questions arose about the nursing regime and the decisions made by the supervising doctor. These included questions about the procedures which had been used and the extent to which either the nursing staff or the doctor were responsible for a failure to diagnose the patient's true condition and to treat it effectively. The case was proceeding towards a court hearing 6½ years after the death of the patient. Mediation took place over one day. Following a series of private meetings between the parties (and their solicitors and other representatives) and the mediator at a neutral venue, the case was resolved. It was agreed that a sum of money would be paid to the patient's husband and children. It was also agreed that the husband could discuss current procedures with the hospital. Mediation brought closure and certainty for each of the parties and avoided what could have been a lengthy court hearing along with the continuing stress, additional expense and the possibility of unwanted publicity.