Leading UK Sets and Individuals Recognised

Twenty-five UK barristers’ chambers are recognised for exceptional performances in the latest research by Who’s Who Legal across 26 practice areas, including mediation.

Brick Court Chambers is a large and prestigious commercial, competition and public law set with outstanding strength and depth, earning recognition in half the practice area chapters in this edition… Brick Court stands out in particular for its undeniably top-tier competition law practice, as well as its commercial expertise in the banking and finance, insurance and reinsurance, and energy sectors.

The set is also a leader in alternative dispute resolution, earning multiple high-status listings in our arbitration and mediation chapters.

Of the top four mediator silks recognised by Who’s Who as “most highly regarded” two of those four are from Brick Court;

Brick Court Chambers boast an impressive bench of commercial mediators with extensive experience in high-profile disputes worldwide. Three prominent silks are recognised.

Door tenant John Sturrock QC is considered a “thought leader” in the area. Sources cite his keen intellect”, “preparation to get at core issues” and “massive wealth of experience in difficult negotiation situations”. Another respondent maintains, “John is the best mediator I have met and has brought about a settlement in two cases which I thought resolution was impossible.”

William Wood QC is also regarded as a “thought leader”, earning widespread praise from peers who regard him as a “stellar performer” and “one of the world’s top mediators”. Wood regularly mediates on a wide variety of complex and high-profile disputes internationally, including a high number of competition, insurance and telecoms matters.

The “extremely popular and successful” Stephen Ruttle QC is a leading mediator in the international commercial sphere praised as an “innovator” and “extraordinary performer”.

Tony Willis of Brick Court Chambers is an eminent mediator with an excellent reputation in the field. He often handles cases across Europe and the Middle East.

A “Chance” Mediation Meeting

Where it is logistically possible (and that may only be in some cases), I have recently begun to suggest that I meet with parties and their lawyers on the evening before the full mediation day. I usually meet privately with each group for one hour to 90 minutes. People are slightly more relaxed and that can open up the mediation. I find I make a lot of progress during these times. That means that the following day gets off to a much faster start. And, overnight, people have things to consider just from the questions I ask and the fresh thinking which occurs. It also means that I can plan the choreography for the morning with greater clarity and assurance, getting to the heart of matters more quickly. This can bring the added benefit of a speedier day all round, with a significantly earlier finish than is often the case when starting cold on the mediation day.

This approach brought about a really useful moment in a recent mediation. I had held private meetings with the parties, a big corporate on one side, and life partners on the other who were in business together and involved in a long-lasting commercial relationship with the corporate. There were serious court proceedings ongoing, with a considerable amount of animosity and bitterness owing to events which had seemingly broken the relationship. In my meeting with them, I had pointed out to the partners that there were two participants on the corporate team who were new to the situation and that it might be useful for us to use the process to enable them to engage with these new players early the next day, so that they could convey their side of the story to people who might carry less baggage.

As I ate dinner in my hotel later in the evening, the “new guys” passed by and invited me to join them for a drink in the bar. (I had been unaware of the fact that they were staying there).  I explained that my independence as mediator prohibited such socialising with one party only. However, I did know that the partners were staying in the hotel. So, later, I took a walk to the bar in the hope that something useful might happen. The partners were seated at a table just a few feet from where the two new guys were sitting. Neither pair was aware of the other. Each was enjoying a drink. I moved between them and invited them to meet, saying that I thought it would be a good idea if I introduced them to each other. A very human moment followed. The awkwardness of the situation dissipated as they exchanged pleasantries and smiles, as well as recognition of the difficulties they faced with their dispute. I didn’t allow them to get into detail but it was enough to reveal the underlying decency of those present – and for each to say that they genuinely wanted an end to it all.

Less than twelve hours later, I sat in our plenary room as the same four plus one or two others (and one lawyer each) had a frank and honest discussion about what had occurred two years ago. Much greater understanding was achieved including, as usual, an expression of regret that they had not been able to have this conversation back when it all started to go wrong. The conversation was smoother and more direct because of the chance meeting the evening before.  Fascinating. What a process.

(Events and players changed in part to preserve anonymity and confidentiality)

Find the Right Thread to Pull

Litigators discussing the wisdom of hiring an evaluative mediator at a recent ADR conference;

“It’s just too risky – we don’t want a mediator telling us anything, we can get a Judge to do that. What’s more it make s it harder to settle, not easier, if doubt goes out of the room”

When one of the huddle said “…hang on a minute – I’m not talking about a thumbs up/thumbs down kinda guy, I want someone who finds the right thread to pull so I can resist (so as to make my argument) or allow me an organised retreat if I choose, that’s what I mean by evaluative…’

Challenging Assumptions in Mediation

I share examples from two very different mediations, each challenging some assumptions about what can be achieved – and how.

Number one: a dispute about interpretation and application of a limitation clause in a commercial contract. No factual dispute at all. In a large construction claim arising out of building a public facility in an overseas jurisdiction, the parties had agreed that the claim was so high (multi-tens of millions) that whatever the decision on the matter of interpretation, it was unnecessary to explore the figures. Similarly, primary liability was not in issue. Subject to a couple of further interpretation variables, if the clause provided for A, then x was due; if B, then y would be payable.

Classically, this fell into that small category of cases for which mediation has often been deemed inappropriate – or unnecessary. It was a simple point of law for a judge or arbitrator to decide. But here we were at 11.15am, after the lawyers had met with me to prepare an agenda of the issues requiring to be addressed, each party (lawyer and client) laying out its arguments in front of the other’s legal advisers and client. They were analysing legal propositions and the risk attaching, with me posing some questions about the meaning being ascribed to certain words in a contractual cap and inquiring about the advice tendered by leading counsel.

It still took several hours to explore the risks and opportunity costs, test the realism of some key arguments, and deploy “Mr Justice Not Very Bright “ in each room. For one reason or another, this notional judge tends to ask awkward questions, as if he does not understand the points being made. He proves to be a useful tool on occasion, sometimes dropping hints about how he might view things in a court. He performs the same role privately for all parties, but in different ways of course. And he always qualifies his comments with the observation that he does not have complete knowledge and that parties and their lawyers are completely free to disregard his remarks.

Incidentally, while my penchant for inviting the clients and counsel to join me for a quick pastry or “breakfast” at an early stage does not always meet with ready approval, here it worked a treat. In this session, the principals soon discovered a common bond from the past in their industry, and this gave them much to discuss throughout the day, as well as generating the goodwill to enable them to meet and complete the deal when the lawyers needed that extra commercial input later in the day. It was in their corporate interests to reach an agreement and they did, on the back of the risk analyses which the day had encouraged and empowered them to conduct.

Number two: an oil and gas employment dispute involving a very senior strategic adviser and his erstwhile employer. It seemed to be a classic for a bit of relationship-building, as hurt and humiliation were high on the list of the consequences of an unforeseen redundancy. It also seemed to be as much about ego as about money.

The two protagonists could still speak fairly amicably to each other in a kind of mentor/mentee relationship. Inviting them to meet together early in the day would have been an obvious strategy for this mediator, with an opportunity for each to set out how they saw things, get things off the chest, give explanations for what had happened, enhance understanding, acknowledge the other, and so on.

However, contrary to many of these types of cases, there was no meeting at all between the parties until they came together to sign the settlement agreement at 5.30pm. All negotiations were conducted through or with the two very able lawyers. And when the parties did meet, the clients were soon chatting away, almost as if they might start their working relationship again. They won’t but the geniality confounded many assumptions I might have made. Keeping them separate until an acceptable arrangement had been achieved had worked well.

One small, notable, deviation from the norm may have been the key in this one. I had arranged to meet each party and his lawyer at my hotel the evening before, just to “get to know” them. At the crossover point between meetings, they bumped into each other for the first time in months. They had a pleasant exchange of words. Maybe, in that informal environment and at that moment, that meeting was all that was needed to take the edge off the anxieties about what was to come next day and temper the stored up hostility of the past.

We’ll never know, but what we do know as mediators is that we are always learning and that there is no fixed way to do this.

These things happen in mediation…

sony_emoji_bTowards the end of a long day’s mediation the two  principals met together and managed to agree a settlement.

As they emerged from their meeting one of them took me to one side and told me how unhappy he was with the deal. I sympathised but resorted of course to the old platitude: “Well a good mediation always ends with both parties unhappy to some degree”.

At that point we both heard the sound of wild cheering breaking out in the room where the other principal was announcing the result of his discussions to his team.

A New Seat at the Mediation Table? The Impact of Third-Party Funding on the Mediation Process (Part 1)

In the first of a two-part article, Geoff Sharp looks at the development of third-party funding of litigation, arbitration and mediation in part 1 and later in part 2 we will look at how TPF impacts the mediation process


Third party funding (TPF) of claims has been around for quite some time. Historically however, some jurisdictions have prohibited a stranger to a lawsuit financing the claim of another in return for a share of the spoils.

Over time that has changed as many jurisdictions overcome fears that litigation financing somehow perverts the course of justice – that a third-party funder “might be tempted, for his own personal gain, to inflame the damages, to suppress evidence or even suborn witnesses” (Lord Denning in the Trepca Mines Case 1963). 

Over the intervening years, concerns over access to justice have come to trump the very real risks of third-party funding and as a result many jurisdictions have relaxed notions of champerty and maintenance.

Just in the last fortnight the Court of Appeal (UK) confirmed that position in the long running Excalibur Ventures v Texas Keystone case saying “Third party funding is a feature of modern litigation” and that it is “an accepted and judicially sanctioned activity perceived to be in the public interest.”

So the tide has definitely turned and the last couple of years have seen a dramatic increase in the level of TPF generally, with most funding confined to lawsuits (i.e. those claims bought in the courts). However, we are now seeing a similar rise in levels of arbitration funding and in particular, the international commercial arbitration community appear to be embracing TPF with many jurisdictions like Singapore and Hong Kong responding with enabling legislation. 

These South East Asian jurisdictions are reforming to allow funded arbitration to ensure their continuing status as favoured dispute resolution hubs. On 7 November 2016 the Civil Law (Amendment) Bill was introduced in the Singaporean Parliament allowing for third-party funding of arbitration by early 2017 and Hong Kong is currently in a consultation process that will see a similar result.

With the rise of TPF in litigation and arbitration, it follows that funding of mediation is also on the increase, given that much mediation happens along side these two dispute processes and in the 2nd part of this article we will look at the consequences of TPF for the mediation process itself, in particular the dynamics of the mediation table itself, but first…

What is TPF and how does it work?

Well, at its most simple, it’s not complicated.

Although TPF products offered by third-party funders are now quite sophisticated, basically TPF is the funding of litigation or arbitration parties (usually claimants and increasingly class claimants) in return for a share of the proceeds. 

“Litigation funding is where a third party provides the financial resources to enable costly litigation or arbitration cases to proceed. The litigant obtains all or part of the financing to cover its legal costs from a private commercial litigation funder, who has no direct interest in the proceedings. In return, if the case is won, the funder receives an agreed share of the proceeds of the claim. If the case is unsuccessful, the funder loses its money and nothing is owed by the litigant” (Association of Third Party Funders – England and Wales)

On one view, TPF is simply another way to fund claims there having always been a number of ways to pay the costs of pursuing a claim in the courts or in arbitration – obviously, parties can simply fund their own costs, or equally, they may finance them by a loan from their bank or they may negotiate a fee structure with their lawyer (e.g. a no win, no fee contingency arrangement or a success fee conditional upon the result of the litigation).

Third-party funding however is different – a funded party will not normally have to pay any amount back to the third-party funder if the proceedings are unsuccessful. And these days it’s not only for financially distressed claimants who lack the ability to bring a claim.

As Ruth Stackpool-Moore, Director of Litigation Funding at Harbour Litigation Funding says, claimants approach her organisation with a request to fund for a variety of reasons ranging from hedging risk to not having a legal budget to fight the case.

To record the funding arrangement, the third-party funder and the funded party sign a Third-Party Funding Agreement covering the matters you would expect, including what and how the funder gets paid out of a money judgement or award, the degree of the funder’s control over the conduct of the proceedings, what happens if there is a disagreement (for instance, around settlement), the funders liability for things like adverse costs orders or security for costs etc. Such agreements are usually bespoke and very much depend on the individual circumstances.

TPF Issues

One of the issues currently exercising a number of jurisdictions is whether there should be greater regulation of the TPF industry to mitigate risk of abuse.

Some, like in England, favour self-regulation where funders subscribe to a voluntary code of conduct setting out capital adequacy requirements, ethical matters, limitation on the withdrawal of funding and what happens in the event of disagreement etc. A particularly important question is the funder’s level of control and ability to influence the conduct of a claim. There are competing views depending upon the jurisdiction – for instance ALF’s voluntary code takes a relatively conservative position requiring a funder “not seek to influence the Funded Party’s solicitor or barrister to cede control or conduct of the dispute to the Funder”.

The alternative view is that since a funder is putting up the money and has a stake in the outcome, important decisions like who to appoint as arbitrator or whether to settle at a particular level are quite properly a matter for funder input.

Jane Player of King & Spalding says “As an adviser I think funders are here to stay  and the good ones leave you alone to run the case and report  back at regular intervals on a risk assessment basis… I see [funders] as a positive influence as they often lend objective thinking to ultimate settlement offer discussions”

The reality is that there is usually little disagreement between the parties to a Third-Party Funding Agreement where it has been well drafted following a solid due diligence process and more importantly where there is effective communication between the parties who understand what is expected of each other.

Ruth Stackpool-Moore again; “When we do our due diligence we try to establish not only the legal merits of the claim, but also the realistic value and the realistic budget. We then agree the cost of funding based on the risks, the size and length of the case. Our pricing process – agreed upfront with the claimant – includes discussions regarding their settlement expectations. Our terms are clearly expressed in our funding agreement, so the claimant can calculate with ease how much they will owe us at all times“. 

Steven Friel, Chief Investment Officer at Woodsford Litigation Funding says;

“Ultimate control rests with the claimant and the claimant’s lawyers. We have the right to provide input, but we don’t necessarily have veto rights. Ultimately, however, my objective as a commercial funder is to ensure that I choose and cultivate the relationships with my claimants in such a way that I rely on cooperation, rather than strict contractual rights, when advancing my position in relation to settlement.

I am delighted to say that I have never found myself in dispute with one of my claimants in relation to settlement (or anything else, for that matter). If there is a dispute however, it is open to either party to refer it for expert determination”.

So, what kind of claims attract third-party funding?

Well, they are usually high value and often international.

There are varying reports of how strong a case must be before it will interest a third-party funder – some reports have that as low as 60% chance of success or as high as 85% – the Jackson Preliminary Report (2009) put it at around 70% for UK funders. Harbour Litigation Funding will fund a claim value greater than £10 million and the only cases unsuitable for funding are divorce and personal injury cases.

One thing is for sure, funders will normally undertake their own case assessment and only fund a very small proportion of the those offered to them.

 Steven Friel again;

“We will only fund meritorious claims, pursued by motivated claimants against solvent defendants, where costs are proportionate to the likely recovery, and where the governing law and jurisdiction afford relative certainty”.

In part two of this article Geoff Sharp will look at what factors are taken into account in deciding whether or not to take a funded case to mediation, how funders decide whether to attend on mediation day and what impact that has on the mediation dynamic, what role they do play if they do attend and the volume of funded cases actually going to mediation… and more

In the meantime, an excellent publication with a focus on contemporary issues in third-party funding of arbitration is Norton Rose Fulbright’s International Arbitration Report, issue 7, September 2016

A Doggerel by Richard Lord QC

xxxxThey say that a good mediator

For all types of dispute can cater

But industry know how

Will certainly show how

To crack it and sooner not later

This doggerel illustrates a divide in opinion amongst mediators. The “purist” tendency is of the view that the mediator’s skill lies solely in just that, being a mediator. On this approach the mediator will, regardless of professional background, be equally able to resolve family disputes, disputes within the local rugby club or Conservative party, shareholder actions, professional negligence claims and charterparty issues.

The alternative and perhaps more conventional view is that knowledge of the sector in which the dispute arises is a big plus, if not essential. On this approach you appoint an underwriter, broker or insurance lawyer as mediator for an insurance dispute or a social worker for a family dispute.

The relevance of this factor will depend on the type of dispute involved. The paradigm situation is a dispute involving issues and disagreements over the (historic) facts and applicable law. But not all disputes do – in some mediations the parties know what the facts and the law are but cannot arrive at a solution.

Industry knowledge has a number of obvious and related advantages. The first is that an understanding of the relevant subject and the issues thrown up facilitates the building of mediator credibility, and trust between the mediator and the parties. Secondly, a familiarity with the subject and the associated law (which usually go together) enables much more effective “reality testing”. This may include the appropriate introduction of points that neither the party the mediator is talking to nor their opponents may have thought of. “Reality testing”, done properly, is one of the most vital tools in lowering expectations.

The counter from the purists is that too much specialist knowledge is a distraction to the mediator. It may lead to a focus on what he or she think is the “right” answer, as opposed to picking up signals and nuanced messages from the parties and their conduct.

On balance I believe that industry knowledge is a definite plus. It cannot replace good mediation technique, but it can certainly enhance it.

Richard Lord Q.C.








Brick Court home to “some of the most highly regarded” mediators in the world

The sixth edition of Who’s Who Legal: Mediation Analysis published this week features over 300 mediators across 52 countries selected as leaders in the field.

The UK Bar continues to be well represented, most notably by Brick Court Chambers whose “fantastic” mediation offering includes two of our most highly regarded individuals. Our research also highlights a number of stand-out individual practitioners.

Home to some of the most highly regarded individuals in our research, Brick Court Chambers continues to demonstrate the depth and breadth of its mediation expertise and its leading position at the UK Bar. The “absolutely charming and totally brilliant” William Wood QC is described by many as “one of the best mediators in England”. He has experience mediating in Dubai, Hong Kong, New York, Johannesburg, UK and Nairobi making his practice “truly international”. Considered “an elder statesman of the mediation field”, Tony Willis is recognised for his “distinctive ability to adapt to any given conflict”. For many respondents, Stephen Ruttle QC is “a truly sensational mediator” and is admired for his “instinctive and intuitive nature” when dealing with disputes in both the public and private sector. Geoff Sharp is a door tenant at the chambers and is “one of New Zealand’s pre-eminent mediators”. He possesses “vast experience mediating in Asia and the Middle East”. Also a door tenant at chambers is Core Solutions Group’s founder and chief executive, John Sturrock QC. He is regarded as “a seasoned expert in the field”, and is recognised for “the great ease with which he facilitates high-level disputes”.

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, Mediocrity and Kakonomy

cr4v5miueaewnqmClassical market economics describes an efficient mechanism which optimises performance and minimises price. A kakonomy (the economics of the rotten) is an economic system in which the buyers and the sellers expect to and do exchange the mediocre.

Two Italian academics [1] give as an example of a kakonomic system with the supply of services by a lecturer to an Italian university. He knows he will be paid less than the contract rate – and late. The university knows he will give an incomplete series of lectures which are old hat. The lecturer and the university are happy with the bargain. The students are the ones who suffer.

Mediators are sometimes heard to worry that in order to succeed commercially they have to make concessions in the standards that they apply at mediations. They worry that if they were preserving the purest streams of mediation practice and insisting on high standards of communication (perhaps insisting on opening sessions, pushing for client-to-client meetings) they will be less likely to get work in future. Is this a kakonomic system? Do the mediators and the solicitors who select them make an unholy pact under which the mediator will not be too challenging in exchange for future business from the solicitor. Is there an under-current that solicitors want the mediation to fail and the case to continue? Are the clients the ones who suffer by getting a sub-standard mediation and remaining buttoned-up and unchallenged through the day?

In other words can you substitute mediator, solicitor and clients for the lecturer, university and students in the Italian example?

There certainly are mediations where the parties have strong and set views about how they wish to conduct matters (often in a very stilted and positional way) and where I have serious reservations as to whether those clients are getting the best out of the process.

Bill, no offence to you but mediation wasn’t our idea. We are prepared to listen but that’s all. If we don’t hear a number we like very shortly we’re going. And in any event Erica has a flight from City at 2.”

In those situations I have to try to insert elements of good mediation practice into the day, almost surreptitiously.

Equally it is very often the clients, particularly the experienced users of mediation, who are most forthright about their preferred mediation techniques. They will often be the most vociferous in their criticism of techniques they think are too touchy-feely, too hippyish.

And is there not something slightly patronising in the assumption that the mediator is the keeper of the flame and that the parties to the mediation are paying him to lead them out of error to the true path? These people negotiate every day, with enormous skill and without the assistance of a neutral, in their working lives. Those skills need to be invoked on the mediation day and not left at the door.

The tension between those two views is a constructive one and is going to be with us for a while. In the meantime kakonomy does at least give us a label for our previously nameless fear.

[1] Diego Gambetta and Gloria Origi, “The LL Game”