Aftercare, Chardonnay and Arizona

Sitting on a panel of mediators in front of an audience of US insurance lawyers last month the topic of mediation aftercare came up. The view on all sides was that when mediations do not settle on the day the mediator’s involvement in the days and weeks that follow is now routine and expected .

Parties expect the mediator to be in contact by phone and email, maybe even over coffee or in a reconvened smaller group. These exchanges can continue over weeks, even months. I have once or twice attended court in mid-trial just before the lunch adjournment at the invitation of the parties to meet them and try to break the deadlock.

Some counsel like a light touch, others want the mediator to push hard. Except in the few cases of truly angry termination (and sometimes even in those) aftercare is taken for granted

Why is it so productive? Companies and individuals can get painted into a corner on the day of the mediation. People get tired and frustrated. Big organisations can simply take time to process a new view of a case as they turn the proverbial super-tanker.

In the hour the panel took to address the conference (in Phoenix, Arizona) I received two text messages.

The first was an unremarkable inquiry from my daughter as to why there was no chardonnay in the fridge at home. But the second from the general counsel of a major media company read simply “Deal Done!”.  A potentially nasty trial between the organisation and its departing Chief Executive had been due to start the next working day. I had overseen an exchange of offers that morning in Phoenix (the afternoon in London) by telephone and email.

I would have punched the air but I was too busy being English.  Sometimes the aftercare seems to be more challenging and more rewarding than the surgery itself.

A Baptism of Fire

Returning to London for a series of mediations this spring my cure for  jet-lag is a one-day Civil Justice Council workshop on the role of ADR in the civil justice system.

90 people packed into the ballroom of a central London hotel: High Court Judges, District Judges, Employment Judges, solicitors, barristers, arbitrators, mediators, the voluntary sector, civil servants from the Ministry of Justice and Her Majesty’s Court Service. As well – a sign of the times, various providers of dispute resolution software.

Chaired by Brick Court’s Bill Wood QC there were no speeches, no talking heads and no power points. Just fast moving discussion;

Why hasn’t the ADR message got through to the public? Are the existing prompts in the system working? If ADR can help parties without representation how is that to be funded and provided? Has ADR been treated as being limited to mediation for too long? Is some form of compulsion or automatic referral to ADR inescapable? If you have to provide at least some opt-outs does that inevitably bog the system down in satellite arguments? How big are the political obstacles in the path of radical reform? Will online access to the Court make all of these questions obsolete or raise new challenges? And what does the overseas experience tell us?

None of us envied the six members of the working group who now have to pick the bones out of it all and write a final report!

Read the CJC ADR Working Group’s Interim Report

What The Directories Say…

BRICK COURT CHAMBERS boasts the leading mediation offering at the UK Bar, achieving several nominations this year including three of our most highly regarded practitioners.

William Wood QC is “totally stunning in every respect” according to peers, who consider him “the best international mediator out there”. They praise his “beautifully light touch” and “would put him top of the list”
Whos Who Legal UK Bar: Mediation 2018

Stephen Ruttle QC is “highly regarded” for his vast experience handling high-value mediation proceedings and continues to impress market sources who describe him as “absolutely outstanding” and “the best there is”
Whos Who Legal UK Bar: Mediation 2018

John Sturrock QC is “utterly brilliant” when it comes to dealing with multi-party commercial mediations, “he absolutely knew what we were after” “and gave fantastic support and advice.” He is highlighted by one impressed source for his “lovely sense of humour”.
Whos Who Legal UK Bar: Mediation 2018/Chambers and Partners 2018

Tony Willis stands out as “one of the grandfathers of mediation” who enjoys “a phenomenal reputation” among peers and clients alike. One respondent effuses: “He always finds a way to get to grips with the dispute and effectively guide the proceedings”
Whos Who Legal UK Bar: Mediation 2018

Geoff Sharp mediates high-end commercial disputes including significant national cases. He receives plaudits from peers, one of whom says “He is a mediation megastar. Geoff is hugely experienced and brings years of knowledge to each mediation.”
Whos Who Legal Mediation 2017

Better Conversations Bus Tour

Collaborative Scotland recently organised a series of public events and business breakfasts in the north-west of Scotland as part of its Better Conversations Bus Tour.

Collaborative Scotland is led by Brick Court’s John Sturrock QC.

The tour facilitated a series of free open meetings and workshops in partnership with some of the region’s most prominent civic organisations, including the University of the Highlands and Islands, the North Highlands Initiative, Highlands and Islands Enterprise, Crown Estate Scotland and North Coast 500.

Events along the way enabled constructive dialogue that encouraged people to consider what vision they have for their community and the country as a whole. Public meetings focussed on Brexit and Other Challenges” and asked What sort of community do we want to be?” It also offered meetings for local businesses to consider how to reduce unhelpful disputes and have more effective business arrangements, and for school pupils to learn about respectful dialogue.

John comments:

Over the past few years, I’ve had the privilege of leading Collaborative Scotland and encouraging respectful dialogue on constitutional issues and the future of the country.

So often communities, especially those in rural areas, can face divisions about their future direction – often in response to developments like wind farms, proposed land reform, new initiatives and losses anticipated from Brexit. Those issues can become polarising and adversarial. Yet in my role as a professional mediator I’ve seen so often how much benefit there is when people are able to sit down and talk constructively about important issues, especially where they might have different perspectives, and when they can really begin to understand each other’s viewpoints. Time and again they go on to explore ways to move forward and find common ground that improves the situation for everyone.

We realise that there is so much to be gained, in personal, local and business relationships, when folk find common ground. Our bus tour will explore how local communities and businesses in areas of Scotland, that face unique socio-economic challenges and opportunities, can achieve even more by working together.

We’ll ask questions like: “What vision do we have for our community? And for our country? What matters most to us? What concerns us?” We’ll be promoting Collaborative Scotland’s Commitment to Respectful Dialogue as we go.

Milestone Civil Justice Council Report Out for Comment

An expert working group of the Civil Justice Council has published a comprehensive interim report on the role of ADR in civil justice in England and Wales.

The CJC is now seeking written submissions and recommendations of the report, ahead of organising a seminar at which the proposals can be discussed and a final report prepared and submitted to the Government.

Chairman of the CJC Working Group is Brick Court’s Bill Wood QC

ADR has failed to achieve the integral position in the civil justice system that was intended and expected for it at the time of Woolf. The CJC assembled this Working Group (including representatives of the Bench, the professions, the ADR community and an academic) to try to understand the reasons for failure and to suggest some possible solutions.

Our aim is to stimulate a debate between all stake-holders as to the nature of the problem and the possible practical solutions, including the thorny issue of mandatory mediation. With the Online Court in development and pilot local mediation schemes up and running in a number of centres, this is an exciting time. The Report does not try to be utterly comprehensive nor does it purport to have all the answers but we hope it can make a contribution, and that in due course a final report can set out a widely-supported basis for moving forward.

Chairman of the CJC, Sir Terence Etherton, the Master of the Rolls

ADR is a very effective means of resolving civil disputes quickly and cheaply. This report explores the current use of ADR and the reasons why it is not used more frequently. As we prepare to enter a digital age of dispute resolution it is an ideal time to look in detail at how the potential for ADR can be maximized.

Read the full report

Written submissions by Friday 15 December 2017 to civiljusticecouncil@judiciary.gsi.gov.uk.

In other BC news, Bill Wood has recently been reappointed to the Civil Justice Council until 2020.