John Sturrock Features In The Times

In these turbulent times, some might be interested in John’s article published in The Times newspaper yesterday…

Brick Court Mediators In Asia

This week Geoff Sharp was appointed one of a handful of Senior International Mediators to the new Mainland China – Hong Kong Mediation Center.

Being the first joint mediation center in the region set up by two major mediation institutions in Mainland China and Hong Kong, the Center aims to provide an effective platform for resolving cross-border commercial disputes between Mainland China and Hong Kong, in particular with China’s “Belt and Road” initiative.
The Center is a joint venture between the China Chamber of International Commerce and the Hong Kong Mediation Centre, with the vigorous support of the Department of Justice.
The Belt and Road inititive together with the National 13th Five-Year Plan means cross-border trade is set to increase drastically and commercial disputes are expected to follow.

 

Off With The Wig!

This speech by The Hon Tom Bathurst AC, Chief Justice of New South Wales on 30 March 2017 addresses issues arising for advocates switching from the courtroom to the mediation table and is worth a read.

The Judge discusses what advocates should keep in mind when moving from litigation to mediation and back again.

I want to first discuss the ways in which advocates need to shift gears when moving from a litigation to a mediation terrain, employing different models of advocacy in each setting. I will then move to consider how a lawyer’s ethical duties may manifest themselves differently despite having the same essential content in both venues. Finally, I will discuss the extent to which practitioners are covered by advocate’s immunity from suit when representing clients in mediation…

Olivia Rundle has famously categorised five ways in which lawyers may participate in mediation. This ranges from;

  1. the absent advisor, who assists the client to prepare but does not attend the mediation
  2. the advisor observer, who attends the mediation but does not participate
  3. the expert contributor, who participates but only to the extent of providing the client with legal advice
  4. the supportive professional participant, who directly participates in concert with the client
  5. the spokesperson, who speaks for, and negotiates on behalf of, the client. It is only this final model that replicates the lawyer’s role in court.

… It is important that advocates give consideration to these roles before entering mediation so as not to either hijack the process or leave their client insufficiently supported.

No surprises that the sweet spot for a mediation advocate is to be high on the both the relationship and the expertise scale.

Read the full speech here

Mediation Thought Leaders 2017

wwl_logo_2014Brick Court is home to 4/10
...Well done to all our colleagues
Great to be in such good company

In its latest round of global research Who’s Who Legal recognise ten mediators who obtained the highest number of nominations from peers, corporate counsel and other market sources as thought leaders and that they are worthy of special mention not only because of “their vast expertise and experience advising on some of the world’s most significant and cutting-edge legal matters” but also “their ability to innovate, inspire, and go above and beyond to deliver for their clients”

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Generational Change

ley-contact-matthew-rushton-2Continuing our series of guest posts, here is an extract from Matthew Rushton’s superb article at JAMS International where he picks up on 3 broad ADR themes in the UK market. One of those themes was the generational change occuring in the ranks of UK mediators

…Let’s move on to think a little about commercial mediation, and my second theme of generational change.

The shape of the UK mediation market reflects that of other parts of the legal profession in which very few enjoy a very substantial market share. In the 1930s, FE Smith (later Lord Birkenhead) described the English Bar as a profession of 2,000 with enough work for 1000, done by 500. In commercial mediation circles, these ratios seem unattainably aspirational. Stephen Walker, a mediator and commentator, has suggested that commercial mediation is a “cottage industry of about 6,000 with work for 500 carried out by 100”. That seems spot on to me.

Mediation remains a “nascent” profession – if indeed it can be considered a profession. The first providers into the UK market opened their doors in 1989, but it wasn’t until The Woolf Reforms to civil procedure a decade later that mediation became entrenched in the mainstream of dispute resolution.

Thus those with the biggest practices now are – with notable exceptions – those first onto the bandwagon in the early 1990s.

But that is changing. With a handful of deaths and retirements, some of the pioneers are slowly falling away. And that, in my view, is having two effects:

  1. Work is less concentrated in the hands of the very few than previously.
  2. More interestingly, those who are replacing the pioneers have a different character, outlook and approach.

The second generation are not, on the whole, evangelicals. They have not had to travel the country banging on doors, explaining the process and constantly educating potential users. Most of them are commercial litigators whose experience of mediation comes not from text books and the class room, but from acting as counsel in dozens and dozens of mediations.

Thus, they arrive as mediators with an astute understanding of what they think the process is about: what they’ve seen work, what they’ve seen fail. They understand first-hand what clients like and dislike about the process, and tailor their own offering accordingly.

And this causes more rancour, disagreement and falling out than you’d ever believe possible among a profession of peace-makers.

The gulf between mediation theory and mediation practice has always s been a sore point. Collaboration, problem solving, brainstorming options for mutual gain, expanding the pie – the foundation blocks of mediation are seldom in evidence in mediations I’ve observed.

Mediators are taught that it is a future-focused process: the parties aren’t there to rehearse legal arguments. Mediators are taught not to offer a view on the merits; they are taught not to suggest settlement figures: that’s the job of the parties. It is, after all, the parties’ day – they must own the dispute, and own the solution.

But, the reality is often different. People, and companies come to mediation for all kinds of different reasons – some are well prepared, some are not. Some are experienced users of mediation, some are not. Some genuinely want to settle – some merely want to advance their understanding of the other side’s case for ongoing litigation.

Very often, what they want from a mediator, is an independent third party who – to paraphrase Geoff Sharp– gently pulls at the loose threads in their opponent’s case (and indeed, sometimes their own) – knowing when clients might be badly advised, or simply refusing to listen to good advice. A mediator can reframe those arguments – and in the same way that my son would literally rather drown than let me teach him to swim – advice is almost always better, more politely, received from a “stranger”.

If what I’m describing is sounding somewhat closer to arbitration – where the neutral third party is responsible for the outcome, then I would suggest that could be what the market is asking for.

And if that’s the case, it’s only right that mediation accommodates that. So in some ways this change wrought by a new generation of commercial mediators ties into my first theme – that of leveraging the flexibility of the process into new and different areas in new and different guises. Many will no doubt regret that, but more optimistically, I choose to view that as progress.

Matthew is a regular commentator on ADR and is Deputy Director at JAMS International based in London