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"A Dam About to Burst" |
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Getting the Message Across |
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Mediation in the Health Service |
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Forthcoming Events |
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Enforceability of Mediation Clauses |
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A Very Happy New Year to all of our Readers and Supporters |
was how one solicitor described the future for mediation after attending a Core Mediation training course and reflecting on his experience of developments in England and elsewhere. The response of lawyers and clients is increasingly positive as they become aware of the benefits which mediation can bring in earlier and more effective resolution of disputes. Inquiries about mediation are now coming in on an almost daily basis to the Core Mediation office.
A recent mediation in a commercial contract was attended by 13 participants, including Counsel and experts, ensuring that all those who needed to be involved in the negotiation were present. The mediation resolved a long-running dispute within one day. Another long-running dispute over the alleged professional negligence of a solicitor was also resolved in the course of a day. Getting the right people to the table is one of the benefits which mediation can bring. Substantial savings in cost are another.
Core has recently presented seminars on mediation to two of the major Aberdeen law firms, including a day-long training course on advising and representing clients in mediation. We had the privilege of making a presentation at an employment law conference sponsored by one of Edinburgh's leading firms and attended by lawyers and HR professionals from a wide cross section of Scottish business and industry. Another presentation to the Mediation Group of the CIPD was held in Edinburgh. Court of Session judges and many sheriffs have shown interest following presentations on the role of mediation in judicial training courses and we have maintained our commitment to the next generation by conducting and planning seminars at Edinburgh, Strathclyde and Dundee Universities. Core will present a full day module on mediation in the recently inaugurated Professional Competence Course in association with the Glasgow Graduate School of Law. We will also be addressing a major Oil and Gas Conference in Aberdeen in March and recently gave a presentation in the boardroom of a major Scottish oil company.
We continue to receive good press coverage with features in the Journal of the Law Society, Business AM, The Herald and the Edinburgh Chamber of Commerce magazine "Inform".
Core's one-day seminar for health practitioners, policy makers and lawyers involved in medical negligence actions attracted a diverse and interesting cross-section of participants. Represented at the seminar were solicitors who regularly act for pursuers and defenders, general practitioners, Scottish Executive officials and representatives from SLAB, hospital trusts, the Medical and Dental Defence Union in Scotland, the voluntary sector, the Royal College of Nursing, the Central Legal Office, the dental profession and the Royal Society of Edinburgh. We were joined by Tony Allen of the Centre for Effective Dispute Resolution who has led the way in England in medical negligence mediation. There, pre-action protocols, model directions and encouragement by the Legal Services Commission and the NHS Litigation Authority have all helped to increase the number of mediations in this area (with an 88% settlement rate on the day of mediation or shortly after).
During the day, a number of interesting and challenging issues were raised, including the funding of medical negligence actions generally and the funding of mediation in particular. That this is an area in which mediation has a significant role to play was not seriously questioned: the real issue is how to bring mediation to medical negligence claims quickly and effectively. We recently attended a meeting with Scottish Executive Health officials and pressed the case for encouragement and policy making at Executive level.
Core Consulting is working with the Chartered Institute of Arbitrators in Scotland and the RICS to provide training for mediators in a seven day course to take place in May and June of 2003. Details from Jasmine Sneddon at the RICS jsneddon@rics.org.uk.
Following our discussion about mediation clauses in the last newsletter, it has been decided in England that a contractual commitment to mediate is enforceable: see Cable & Wireless v IBM [2002] EWHC 2059 Commercial Court. Colman J insisted that parties entering into an ADR agreement must recognise that "mediation as a tool for dispute resolution is not designed to achieve solutions which reflect the precise legal rights and obligation of the parties, but rather solutions wich are mutually commercially acceptable at the time of the mediation". The impact of this decision is potentially very significant and, at least in England, removes an area of doubt about the value and purpose of including mediation clauses in contracts. What about Scotland?
May we take this opportunity to extend very good wishes to all of you for 2003. Perhaps this is a good time to reflect on the value of co-operation and consensus, and for us to acknowledge that better relationships and reconciliation are as important now as they have ever been.
If you do not wish to receive the Core Mediation newsletter in future, please let us know by emailing maxine.gomersall@core-mediation.com.