New Appointment for John Sturrock

News from Scotland that our colleague John Sturrock QC has been appointed by the Scottish Government to conduct a review into allegations of bullying at NHS Highland. This short life inquiry will continue alongside his mediation work in London, Edinburgh, Belfast, Dublin and internationally.

As well as his extensive commercial experience, John has worked at high levels on industrial and organisational management issues, in addition to his involvement in domestic and inter-governmental policy and political strategies.

On his NHS Highland appointment, John comments

These are difficult and sensitive issues. I know from my work as a mediator how important it is to listen to people’s concerns. My primary role, therefore, is to provide a safe and confidential place for people to be heard and to explore with them what the underlying issues might be

Read more here

Following the publication of the recent report on mediation in England and Wales by the CJC ADR Working Group chaired by Brick Court’s Bill Wood, John Sturrock has also taken on a similar role in Scotland where he has been appointed co-chair of a major review into mediation there.

John’s recent blog on the role of mediators in the political space here

CJC ADR Working Group Final Report

The ADR working group of the Civil Justice Council has published its final report.

Highlights include stopping short of recommending a ‘presumption’ that parties will agree to alternative dispute resolution as a condition for issuing proceedings (that is, no mandatory mediation) and setting up a Judicial/ADR liaison committee.

The Master of the Rolls, Sir Terence Etherton said ‘The working group is to be commended on producing an impressive report that proposes a number of reforms to the current system’.

Brick Court’s Bill Wood QC and Chair of the Working Group:

We have done our best to set out what seem to us the most promising options for the future. We are particularly pleased that our proposal for continuing liaison between judges and ADR professionals is already being acted upon by the Master of the Rolls

CJC ADR Working Group Report

Trick or Treat? It’s Directory Time

Ah vanitas vanitatum! Which of us is happy in this world? Which of us has his desire? Or, having it, is satisfied?

Thackeray, Vanity Fair

Autumn is upon us, the clocks have gone back, mists and mellow fruitfulness prevail. And, fittingly, on Halloween itself the legal directories, TripAdvisor for the vexatious litigant, complete their 2018 editions.

Both halves of the profession are racked with anxiety in advance. As the polythene is torn off the books and the uploaded versions flicker on to the screen either fist pumps or a slight tremble of the lip will follow. Trick or treat?

Mediators, we have to admit, are not immune from this bonfire of the vanities. But the Brick Court Chambers team are pretty pleased with this year‘s harvest. Before we set out one two of the highlights (sorry!) we thought we would offer some pointers. We are keen to help the uninitiated appreciate the finer aspects a good directory entry.

  • Anybody who has run into Bill Wood in the last few months will not have escaped being told that he is (per Who’s Who Legal) the 2018 Mediator of the Year. They may be a touch surprised to see him described by Legal 500 this year as “immensely modest”.
  • Geoff Sharp, our New Zealand correspondent, has well and truly marked his increasing presence in London by crashing into Who’s Who Legal and Chambers at the first attempt.
  • Good news too for the indefatigable Tony Willis who this year has been spared ageist references to him being the “grandfather of mediation”, remarks that would have troubled a more flappable man.

We also enjoy the school report flavour that comes with the use of surnames.

Ruttle specialises in ships

Sturrock is the leading mediator in Scotland

Wood is in detention again

There seems to be a set vocabulary and there are clearly subtleties in the choice of epithet. The ones we like include “energetic” and “committed”.

We are less sure about some of the following (however well-intentioned);

“Hard-working” (bit of a plodder?) “Affable” (elderly? Under-prepared?) “Cerebral”(on another planet for most of the day?) “Puts clients at their ease” (likes to be loved and will not challenge even the most absurd aspects of your opponents case?). Enjoy!

John Sturrock QC

“He has tremendous presence and personality but his technical skills as a mediator are also excellent’ L500 2018

A “spellbinding mediator and great thinker”… “by far the best in the market” WWL 2018

“Singled out for praise by clients for his “relaxed, soft approach at outset” and yet for his ability to “still push hard to get a deal at the end of the day.” Chambers 2018

Geoff Sharp

“Leading mediator” in the field ….engaging manner, charm and intelligence” WWL 2018

“Really tenacious and determined to look at things from every angle to get the parties to talk” “He’s really sharp, asks the right questions, and knows when to intervene and when to give clients space” Chambers 2018

Stephen Ruttle QC

“always excellent” “outstanding” WWL 2018

“brings the experience that clients would expect from one of the top mediators in the business and clients are left impressed” L500 2018

a standout mediator who “is really on the ball. He can get into a party’s mind, find out what they care about, then get them over the line and find a resolution” Chambers 2018

Tony Willis

“A top practitioner in the market, specialising in commercial and regulatory disputes” WWL 2018

“… Has conducted over 1000 mediations” L500 2018

“Stands out among practitioners and clients for his tremendous experience” Chambers 2018

William Wood QC 

“The number-one mediator in the UK today” …”rare blend of good humour, professionalism and experience” WWL 2018

“Extraordinarily well-prepared”…. “such an effective mediator because he is extremely cerebral and, at the same time, immensely modest” L500 2018

“You always feel confident when he is there that a mediation will resolve” Chambers 2018

Our collective thanks to our referees who take time to answer the phone or return that researcher’s email and who continue to instruct us year in and year out.
We are very grateful.

The Singapore Convention

Settlements reached in cross border mediation will soon be enforceable internationally just like arbitral awards when UNCITAL’s Singapore Convention, the first UN treaty named after Singapore, comes into force in August next year provided sufficient countries ratify.

As a result, there is an expectation by Singaporean authorities that the city state’s most favoured status as an international mediation venue will be further confirmed.

Seen as mediation’s answer to the New York Convention that allows for the easy enforcement of arbitration awards, the Singapore Convention comes on top of much mediation activity in Singapore having last year also enacted a Mediation Act whereby mediated agreements can be recorded as orders of Singapore’s courts, allowing parties to enforce their terms more easily.

Key terms of the Singapore Convention include*;

Article 1 outlines the scope, applying the Convention to cross-border commercial disputes resolved through mediation where “at least two parties to the [written] settlement agreement have their places of business in different States” or in which parties “have their places of business different from either the State in which a substantial part of the obligations under the settlement agreement is performed or the State in which the subject matter of the settlement agreement is most closely connected.” Article 1 specifically excludes settlement agreements related to consumer, family, inheritance, and employment matters, as well as those enforceable as a judgment or as an arbitral award.

Article 2 defines key terms used in the Convention such as “place of business,” “in writing,” including in electronic form, and even “mediation.”

Article 3 summarizes the general principles and obligates member States that ratify the Convention and also permits a party subject of the Convention to invoke a defense and to subsequently prove that a particular dispute being raised was already previously resolved by a settlement agreement.

Article 4 provides a specific but broad checklist of what a party must supply for enforcement of the international settlement agreements that result from mediation. Article 4 includes submission of a “settlement agreement signed by the parties” and “evidence that the settlement agreement resulted from mediation.” Evidence includes items “such as” a “mediator’s signature on the settlement agreement,” or “a document signed by the mediator,” or “an attestation by the institution” administering the mediation. In the absence of such proof, Article 4 allows a party to submit “other evidence” acceptable or required by a competent authority of the member State where relief is sought. Article 4 also addresses key issues related to electronic communication, translation of settlement agreements, and calls for the competent authority of the member States enforcing the settlement agreements to “act expeditiously.”

Article 5 was vigorously debated and certain overlaps within the Article are intentional to accommodate the concerns of a member State’s domestic legal systems. Article 5 includes the grounds when a competent authority may refuse to grant enforcement. These circumstances include incapacity of a party, or where the settlement agreement a) is null and void, inoperative or incapable of being performed; b) not binding or not final; c) was subsequently modified; d) was performed; e) is not clear or comprehensible; or where granting relief would be contrary to terms of the settlement agreement or contrary to public policy, and subject matter is not capable of settlement by mediation under the law of that party. A competent authority may also refuse to grant relief where there is a serious breach by the mediation of standards applicable to the mediator or the failure by the mediator to disclose to the parties’ circumstances as to the mediator’s impartiality or independence.

Article 6 addresses issues of parallel applications or claims and draws inspiration from the New York Convention. It grants, to the competent authority of the member State where relief is being sought, wide discretion to adjourn its decision under the Convention where an application or claim relating to a settlement agreement was made in a court, an arbitral tribunal, or other competent authority.

Article 7 also draws inspiration from the New York Convention and allows member States flexibility to enact national legislation in their countries to expand the scope of settlement agreements excluded by Article 1, Paragraphs 2 and 3 of the Singapore Convention.

Article 8 allows for a tailored adoption of the Convention by each member State, allowing for two reservations when ratifying the Convention. The first reservation is one which relates to the member State or its own governmental agency. The second allows for a declaration that the Convention applies only where the parties to the settlement agreement resulting from mediation have agreed to the application of the Convention.

* Singapore Convention: A First Look by Deborah Masucci and M. Salman Ravala

Brick Court mediators are active in Singapore and Hong Kong and would be delighted to talk to you about mediating in Asia.

Brick Court’s John Sturrock pulled it all together in Edinburgh this last week hosting the International Academy of Mediators’ spring meeting.

The best and brightest of the global mediation community gathered and even got their own tartan to mark the event!

A fantastic program was on offer including Bothy Supper Conversations at local Old Town restaurants and pubs – for more go to #iamedinburgh2018

 

 

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