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.

In Defence of (Defensive) Mediators

Ask most mediators of a certain stripe and they will be only too willing to tell you the story of long ago when they left their law firm or maybe even chambers to become a mediator…. that giant leap of faith, that alarming drop in revenue.

Some will have run away from practice only to later stumble over mediation. Others will have run, arms outstretched in an embrace, towards mediation. And it usually shows in the sort of mediator they become in the years that follow.

But all mediators of this genre have a certain sensitivity in common.

So it was well into the afternoon of a mediation this past week, one of the lawyers who I had last seen when I was at my firm in the 1990’s said to me; ‘So Geoff, when did you give up real law?’

At this point, two answers are possible.

One for a valued and hopefully future consumer of my mediation services; ‘Ha! Spot on Brian – I haven’t opened a law book since 1998’.

But it was the other, giving life to that sensitivity all these years later, that sprang from my lips;

Well, you know Brian, there’s a lot of paddling under the water for us mediators. I have to be able to understand, very quickly, how you twist your square causation argument into the round hole of the law – and test you on it without, of course, putting you on the spot.

Before I can do that though, I need to actually know the law and have a good eye for legal BS so I can ask you, in the nicest possible way, to explain it to me again so others at the table just might pick up the soft spots I got, but they missed, on your first run through.

Sorry Brian, but it felt good.

Brick Court in the Pacific

Brick Court mediator, Geoff Sharp, has been teaching mediation at the University of the South Pacific in the Cook Islands this week courtesy of Cook Islands Law Society, New Zealand Law Society and Massey University.

The course was held at the USP campus on the island of Rarotonga in the Southern Group of 15 tiny islands that make up the Cooks. The resident population of all islands in the group is estimated to be between 11,000 and 12,000, almost all Cook Islands Maori.

By the way, the Cook Islands is one of the few countries in the world to ask a question about coconut consumption as a part of its census – and it was revealed in 2017 that 2,947 households use 28,461 coconuts every week. That’s 10 coconuts per home per week!

In some ways teaching mediation anywhere in the Pacific is taking coals to Newcastle, there being a strong tradition of conflict resolution by mediation within Pacifika social order – in particular in the many villages dotted throughout the islands, often remote from any formal system of justice.

But the modern form, especially for civil disputes – which are mainly land issues – has been eagerly awaited. It won’t be long before mediation is mainstream in the Cooks and it will be very colourful with plenty of food, prayer and maybe even song integrated into the process.

Thanks go to other faculty members, Prof Laurence Boulle, Virginia Goldblatt (co authors of Mediation: Skills and Strategies) and Dick Edwards of NZLS CLE who made it all happen.

Sophisticated Mediation Advocacy : “Out Loud Adverse Advice”

When I am mediating I often encourage counsel ‘to be brave’.

Easier said than done I know, but bravery can take many forms in mediation.

From counsel backing their own advice when the easier road would be to settle – to something a little more counter intuitive and possibly risky – like strategically signaling vulnerability at the table, often achieved by counsel giving the client out loud adverse advice during a joint session.

Yeah, opposite counsel may be right I guess – we will struggle if that’s the way the judge approaches liability on this aspect – and by the way, we are the wrong side of 60/40 odds. But once/if we get through that, quantum is downhill with a minimum of 1m and on a good day 1.95m – their risk that we get to try quantum is unacceptable and (as counsel turns back across the table) we know you can’t live with that for 15 months until trial

What’s going on here?

Well, good mediation advocates know they don’t have to prove their position is the correct one – their task is fundamentally different at mediation – instead they are asking themselves what can I do to move this case towards settlement?

I have heard it said that all you need to bring to mediation is a big stick – errant nonsense of course and ironically, I have seen some very small sticks, aimed very carefully, obliterate their target.

So, good advocates don’t waste energy debating the legals up hill and down dale – rather, just enough back and forth to condition the debate and create doubt (and therefore risk) for the other side – and if they’re really, really good, by using front-foot concepts like preemptive disclosure and inoculation.

Inoculation is an especially intriguing notion and again belongs to next level of mediation advocacy but, other than what appears below, will have to wait for a future post.

Good counsel reason that voluntary disclosure of negative information removes the sting of negativity and divests the other side of the opportunity to expose and capitalise on it.

I delight in seeing brave mediation advocates making carefully considered concessions on points that do not directly undermine their ultimate goal –  which, in the right hands, is an extremely effective mediation posture. And that’s not to say they would do the same thing at trial – that’s the point, mediation advocacy is so very different.

But great caution is needed – there is an art to this high-wire act and it’s best to read this before you try it at the table; Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (Prof Kathryn Stanchi, Temple University – James E. Beasley School of Law).

… it is not surprising that there is considerable controversy among both appellate practitioners and trial lawyers regarding when and how to address information that potentially undermines the position they are advocating. The vehemence of the disagreement among lawyers about the appropriate strategy, as well as the pain of the dilemma, is a testament to the high stakes of the question.

The theory of inoculation is based on the idea that advocates can make the recipient of a persuasive message “resistant” to opposing arguments, much like a vaccination makes a patient resistant to disease… inoculation studies show that raising and refuting adverse information works better than a wholly positive message to insulate message recipients from later attacks on the message… the theory is that introducing a “small dose” of a message contrary to the persuader’s position makes the message recipient immune to attacks from the opposing side.

The key to inoculation is the warning of the impending attack, or “threat”, combined with the refutation of the attack. Refutation alone is not sufficient to produce the inoculation response. The two components work in tandem – for the inoculation response to occur, challenges must be explicitly raised and then answered.

Remember you heard it here at BCC first: “out loud adverse advice”

Read the full article in which Prof Stanchi explains a range of fascinating concepts like bad law, bad facts, stealing thunder, preemptive disclosure and inoculation theory – all useful to the advanced mediation advocate.

J. G . Mean and (Brackets)

My mediations are haunted by a fellow called J. G. Mean who just keeps cropping up. I can be as creative as I like but all too soon JG is there in the room. You encourage some venting, explore various forms of reality, re-frame a little, season the whole boiling with some cognitive dissonance and stand well back – only for somebody to say, “Just Get Me A Number!”.

Now there are various antidotes to JG*. (And in the right place, at the right time JG can be hugely welcome.) But the antidote I have always wanted to try is The Bracket.

We have known for many years that our colleagues in the US were using brackets routinely and successfully to settle cases. I have used them myself, just not in this country. This is the process whereby rather than simply trading offer and counter-offer a party makes a conditional offer: “I will go to £500,000 but only if you come down to £1 million” or more simply says, “My bracket is £500,000 to £1 million. Will they work in that bracket?”.

A word of warning here to our transatlantic readers. If you persevere with this post you will learn nothing. Indeed you may  feel rather like Roger Federer reading a schoolboy’s over-excited essay about his first tennis lesson: simplistic  and with the odd  mistake. Apologies

My own attempts to promote the use of brackets in London have met with abject failure. The parties and their advisors look at me as if I have just suggested trial by combat. “(Sigh) Just get me a number, Bill”

That is, until last week.

Now it is true that last week circumstances were not entirely typical.

First, there were US as well as London lawyers in both rooms so each side had a source of comfort and reassurance as they faced this unusual and discomfiting challenge. Some may object that the record is therefore wind-assisted.

Second, I have to say the mediator was unusually persuasive. Sensing that the door was just slightly ajar I came up with this successful formulation: “Please, please, please be my first London mediation to settle using brackets”. I’ve always thought abject supplication was an effective dispute resolution technique and so it proved in this case.

The magic of brackets, I can now tell you on the basis of extensive experience, turns out to be “the mid-point”.

Of course, in one sense a bracket is at best a conditional offer of the lower figure in the bracket. And the “condition” usually remains unfulfilled. This is because the counter-proposal tends to be another different bracket. So the response in the above example might be: “No we can’t accept your bracket. But we will come down to £1.4 million if you come up to £800,000.”

At a purely prosaic level nothing much has been achieved. But there is poetry here if you look for it. Turns out the bracket connoisseurs are keeping an eye on the mid-point because the most important message of the bracket is that the mid-point of the range is implicitly being signalled as the killing zone for the deal.  The parties tend (at least in private) to say “I have moved my midpoint” more readily than they say they have moved the bracket itself. “She must like my mid-point”, they muse to the mediator.

The midpoint is not being formally offered. It is not even being referred to explicitly. But it shimmers temptingly in the half-light of the negotiations.

Since last week’s triumph things are back to normal. I have once again failed to sell brackets in a couple of purely domestic mediations (“JG! How nice to see you!”). The gleam in my eye is no doubt even more off-putting than before.

Because I have seen the future. Brackets will be here soon, with no more than the customary time-lag, just like hamburgers, rock ‘n’ roll and indeed mediation itself before them.

And they work!

*The best of them set out in the excellent “Making Money Talk” by J Anderson Little