Geoff Sharp Back @ Brick Court

Geoff-resized2We are delighted that Brick Court door tenant Geoff Sharp is back in Chambers for September/October.

Geoff is usually based in New Zealand and primarily works in the Asia Pacific region but, as he did last year, is returning to London for an extended period. He has already been mediating since arriving in mid September and is keen to fill October.

Geoff’s bio here.

If you’d like to get in touch with Geoff, please contact him at geoff.sharp@brickcourt.co.uk or through our mediation clerk Kate Trott on +44 (0) 20 7520 9813

Mediation? The most expensive sandwiches I’ve ever eaten! #2

On the 12th May the sandwiches were well eaten at the Brick Court Mediation Symposium held at Holborn Bars, London.

Watch the video for some wonderfully sophisticated takes on mediation and be sure to read the take away booklet given to guests containing the results of the online survey completed prior to attending.

This was an evening where mediation users had centre stage and Brick Court mediators listened, intending to incorporate those views into our mediation practice.

Questions like these gave rise to a range of user views;

1. Is mediation being used as often as it should? Or used too often? Have we reached peak mediation? If there is resistance how should the Courts or the mediation community respond? What are the sticking points?

“Still cases not being mediated that should be. My sense is the top end stuff gets well looked after and will be mediated if appropriate but the bulk of mid-range litigation is not being optimized”

“[A senior GC] says 19 out of 20 requests he makes for mediation are refused by the other side. This is often because mediation is non-binding and there are issues with enforceability. When the backdrop is the UK Courts, the level seems about right, with certain areas – PI, clinical negligence abstaining. Likewise its use in international arbitration is negligible

2. Are parties generally prepared to negotiate or are there still cases in which they are box-ticking or pursuing other agendas? Do they routinely attend with inadequate authority?

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3. Preparation, preliminary meetings, telephone calls , questionnaires,? How do we set the mediation day(s) up best?

“Following the mediator receiving the position papers and documents, they should read them early on (bring the deadline forward a week) and then have further conversations or distribute points which need further thought or will be a particular focus on the day. The mediator needs to play a much more active role in the run up to a mediation to ensure that the day can be as useful and speedy as possible”

4. Joint sessions: do you like them, can we improve them, should we abandon them? With all the talk about the retreat of joint sessions in the USA, and to some extent the UK, look at these results with 75% of respondents voting them as useful.

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5. What in general are the most effective forms of assistance the mediator can give the parties during mediation?

“Give me strategy advice. Not merit based but based on the dynamics to that point. Rehearse me through the next offer and beyond and give me whatever signals they can about how she thinks my offer will land. I can learn a lot from that”

6. After-care: the long-tail mediation – is this the way things are going?

The sense we at BC have had for some time is that many commercial mediations are no longer settling after a one or 2 day event but rather are seen as part of an active process and settle at some point after the face-to-face phase, with the mediator being an integral part of that extended after-care. While the online survey below is limited to 15% plus settling after mediation day – we think the plus might be up to 30%.

“Perseverance by the mediator was the key. His timing was a little off so it was slow work but then eventually the stars aligned. Just knowing the mediator was still on the job, willing to assist gave the parties the motivation to get it done”

“Holding parties to the framework for settlement agreed in the face to face part, dissuading against moving the goal posts”

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Mediation? The most expensive sandwiches I’ve ever eaten!

sandwich-300x222We have recently launched an online survey to find out what our clients think about commercial mediation.

The survey responses are intended to form the basis of a discussion at next month’s Brick Court evening symposium “Mediation? The most expensive sandwiches I’ve ever eaten!”

Our senior mediators Tony Willis, Stephen Ruttle QC, John Sturrock QC and Geoff Sharp will all participate – chaired by Bill Wood QC.

In the meantime, we would be delighted if you would please take a moment to respond to the 9 question survey here

Along with other matters, we are testing our thoughts around;

>Is mediation changing? To what extent is it becoming a more protracted, long-tail process? What more we do to help you as things change?
>Does the commercial world make proper use of mediation now? How much resistance do you still see to the idea of mediation?
>How likely do you think it is that we may reach the point of “peak mediation”? Are we there already? What more do commercial clients need from mediators?

The survey will be available online until 18th April and results will be reported back at this blog in due course.

Court Involvement in Mediation

Many jurisdictions have grappled with the extent to which their courts should get themselves involved in the mediation of litigated cases.

Many different approaches have found favour around the globe, with diverse programs being implemented in courts from Hong Kong to Florida and places in between. Some courts are hands off while others are heavy handed – regulating every aspect and some even use judges to mediate.

Some programs are creatures of statute, others are mandated by procedural rules while others simply rely on a mediation friendly presiding judge. Some courts, I suspect, see mediation as a competitor – taking the best cases out of the system and contributing to the vanishing trial phenomena occurring in many jurisdictions.

At a recent Resolution Institute conference (formerly LEADR) in Auckland, New Zealand a panel including a High Court Judge, Brick Court’s Bill Wood QC and Geoff Sharp together with a couple of senior NZ barristers discussed the appropriate degree of mediation involvement of courts in the New Zealand context in a session entitled Courts and Mediation: A Symbiotic Relationship?

Some would say New Zealand is, on any measure, a mature even sophisticated mediation jurisdiction. So the question arises in NZ and elsewhere, do our courts really need to nudge litigated matters towards mediation or are we better to simply build it and they will come? The research is mixed however it’s clear many litigated cases do not find their way to mediation without encouragement and direction from the court.

Our panel discussed the Continuum of Court Involvement below – being a spectrum ranging from hands off/light touch to mandatory referral of all civil matters.

NZ is in the judicial persuasion space verging on some fairly weak tick box case management levers. I would like to see it move right.

England and Wales are a little further along, utilising pre action protocols and soft (financial) sanctions for unreasonable refusal to mediate.

Singapore is further along still – subscribing to a presumption of ADR (parties can opt out with reasons) in its Subordinate Courts – resulting in around 6000 mediations annually.

At the far right of our continuum are many courts in mature jurisdictions, most notably some states in the US and Australia, which not so much nudge as two hands push disputes out of the courtroom into the mediation room.

Some refer selected litigants to mediation without their consent however most stop short of a wholesale referral of all civil filings. Or as Nadja Alexander puts it, there exists discretionary mandatory, soft mandatory and routine mandatory.

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To some extent, many of the issues that arise within the court environment (confidentiality, status of the outcome etc.) are different from those where mediation is outside it, however part of the problem with court programs is that often they are designed by people who know little about mediation but know everything about court process. Add to that judges who use the ability to refer cases out as a blunt instrument (maybe even as a hospital pass) without understanding the nuances of the process.

If one gets past that old chestnut of mediation being a voluntary process therefore how can there be any coercion of any kind by anybody (coercion into mediation/coercion within mediation) then the litigation community’s primary concerns appear to be;
1. what cases are mediated
2. how that referral takes place
3. who selects the mediator
4. who pays the mediator

Florida and the England are good examples of how two justice systems have approached these issues.

Florida is widely seen as the pre-eminent US state when it comes to court connected mediation. Some figures have over 100,000 cases being referred out annually. Florida judges have the ability to order cases to mediation and parties have the ability to challenge that referral on grounds that the case has already been mediated or that it involves a question of law only or “for other good cause”. Florida’s success is in large part due to the fact that parties can choose their own mediator.

The English soft sanctions approach is perhaps more familiar to readers of this blog. It is one that I favour as stopping short of mandatory referral but having enough teeth to nudge cases that would not otherwise get to the mediation table. While there is much to say and cases to read, essentially the English position allows judges to impose financial sanctions (in the form of costs) if a party unreasonably declines to mediate, in some cases whether or not they prevail at trial. One of the latest cases in the Halsey line of cases is Laporte & anor v Commissioner of Police of the Metropolis

Other Common Law jurisdictions take a similar approach, for instance, Hong Kong’s District Court recently imposed adverse costs orders against a party who unreasonably refused to mediate; Wu Yim Kwong Kingwind v Manhood Development 

[a useful summary of both cases by Herbert Smith Freehills here and here]

*This post was first published last week at Kluwer Mediation Blog

Bill Wood a Hit in New Zealand

ri-logo01As expected, Brick Court mediator Bill Wood QC has been a huge draw at Resolution Institute’s ‘kon gres 2015 held in Auckland yesterday and today.

Together with his opening keynote ‘Postcard from London’ and a fireside chat with fellow BC mediator Geoff Sharp, Bill also gave the conference dinner speech and mediation toast on Thursday night. He also joined a panel made up of leading New Zealand litigators and High Court Judge Justice Anne Hinton.

Bill was warmly welcomed by local Auckland Kaumātua (tribal elders) with a mihi whakatau and was included in the traditional hongi. Speaking in Te Reo, the elders also shared their knowledge of tikanga.

A hongi is a traditional Māori greeting. It is done by pressing one’s nose and forehead to another person.

It is used at traditional meetings among Māori people and on major ceremonies and serves a similar purpose to a formal handshake in the west.

In the hongi, the ha (or breath of life), is exchanged and intermingled. The breath of life can also be interpreted as the sharing of both party’s souls.

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