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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2015 Mediator Rankings: Four BC Mediators in Global Top 10

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4 September – Who’s Who Legal Mediation 2015 ranking lists 294 mediation practitioners from across 45 jurisdictions.

Who’s Who recognise the world’s leading commercial mediators encompassing sole practitioners, barristers, boutique firms, former judges and non-lawyers and from those, select the 10 most highly regarded commercial mediators in the world.

Incredibly, and for the third year running, Brick Court has four mediators all in the global top 10 ranking and five BC mediators are mentioned in dispatches;

wwl_logo_2014Several members of the UK Bar are recommended for their expertise in mediation, and Brick Court Chambers is home to some of the world’s most respected individuals.

Tony Willis emerges as the most highly regarded individual in our international research, and is described by peers as “unparalleled when it comes to complex regulatory and business disputes”. With over 25 years’ experience in international litigation, he is “incredibly well placed to manage the most high-profile and valuable disputes”; he is also recognised as a “true innovator” in the design of dispute resolution processes.

He is joined by the “distinguished” William Wood QC, who inspires “calmness and precision in even the most contentious and tense disputes”.

Stephen Ruttle QC comes highly recommended for his “superb handling” of disputes across a broad range of industries.

Geoff Sharp, a door tenant at Brick Court with his own practice in New Zealand, is once again included among our top 10 mediators and is regularly “in high demand for his practice covering the Asia-Pacific region”.

At Core Solutions Group in Edinburgh, John Sturrock QC has an “immaculate reputation” in the field and is also registered as a door tenant at Brick Court.

If you’d like to get in touch in relation to a mediation, please contact Kate Trott at Brick Court Chambers kate.trott@brickcourt.co.uk

A View From On High

Supreme_court_crest_(official)_svg12 May 2015: Lord Neuberger’s keynote at the Civil Mediation Conference 2015

“When I was in practice as a barrister, mediation was virtually unheard of in the world of United Kingdom civil litigation. When it came to legal disputes, there was litigation, there was arbitration and there was settlement. Of course there was mediation outside ordinary legal disputes – ACAS being a prime example. And some of us were aware that it was going on in other countries, but the general view was that it was fine for the Americans and Australians, but it was not for us: we didn’t need it…” [read more]

BIT’s and BAT’s

Rainbow Warrior in Auckland Harbour after bombing by French secret service agents.Gary Born, Chair of the International Arbitration Practice Group at Wilmer Cutler Pickering Hale and Dorr LLP, was in New Zealand this week as part of his appointment as the Inaugural Senior Visiting Research Fellow at Victoria University Law Faculty’s New Zealand Centre for International Economic Law.

His visit marked the 30 year anniversary of the Rainbow Warrior case that shook a nation (those of us old enough to remember will recall the case of two French secret agents who blew up a Greenpeace ship in Auckland harbour). Mr Born acted as counsel for Greenpeace.

In addition, I was lucky enough to catch Gary speaking on his most recent initiative around a Bilateral Arbitration Treaty Regime, that aims to provide a default arbitration mechanism for the resolution of defined international commercial disputes.

The mechanism (fondly known as a BAT) would utilize the UNCITRAL Arbitration Rules, providing a means of resolving commercial disputes when nationals from contracting states had not agreed upon an alternative means of dispute resolution. Awards would be subject to recognition in the contracting states under the New York Convention and, subject to additional arrangements, in all New York Convention contracting states.

And the connection with mediation?

Bilateral Investment Treaty (BIT) investor-state dispute settlement (ISDS) relies heavily on arbitration and traditionally mediation has not figured. But, there is a feeling that this is changing since the International Bar Association published its Rules for Investor State Mediation in late 2012 – much has been written in the past year or so on whether investor state-mediation really is one of the last great unexplored tracts of the mediation landscape.

Gary’s initiative takes this one step further and all power to him – the challenge for those of us in the international mediation community is to find how the mediation process can be included in these regimes to add value to both BITs and BATs.

More to come on this topic … and special thanks to Dr Petra Butler who was instrumental in Gary’s visit to NZ.

Further information;

A draft Model BAT can be seen here. A commentary on the Model BAT’s provisions can be got from here. Further details about the Model BAT and its rationale can be found in an article here