Brick Court Mediator Joins WIPO’s Mediation Panel

wipo%20logo1Geoff Sharp has recently been appointed to the World Intellectual Property Organisation’s Mediator Panel.

WIPO administers a growing number of procedures under the WIPO Mediation, WIPO Arbitration/WIPO Expedited Arbitration and WIPO Expert Determination Rules in addition to its domain name dispute resolution activities.

The subject matter of these proceedings has included patent licenses, software licenses, distribution agreements for pharmaceutical products, research and development agreements as well as patent infringement, trademark co-existence agreements, copyright issues, art marketing agreements and entertainment contracts. WIPO’s settlement rate in mediation is reported to be 70%.

Industry Areas in WIPO Mediation and Arbitration Cases;

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Brick Court Mediators in Paris

A number of Brick Court mediators are in Paris this weekend helping the next generation of mediation counsel and clients gain international experience at the 10th ICC International Commercial Mediation Competition.

66 teams from universities all around the world converge in the dead of a Paris winter to participate along with more than 120 professionals as faculty judges and mediators.

Universally recognized for its important contribution to nurturing best practices in cross-border business mediation, the ICC International Commercial Mediation Competition is the only moot devoted exclusively to international commercial mediation and is the biggest educational event organized by the International Chamber of Commerce.

Some early enthusiasm…

New Year Reflections

It is a privilege to do our utmost to help people reach an outcome which addresses their needs and restores dignity.

As another year dawns, it is good to reflect. How privileged many of us are: we are given opportunities to help people who face difficult and important matters. Often these have a significant impact on the lives of those affected. Each deserves to be treated with dignity. I read recently that simply respecting one another is not enough; we have an obligation actively to promote the flourishing of others and to seek their welfare.

To what extent that last proposition is universal, I leave to readers to discern. However, in my role as a mediator, I see such commitment from lawyers and others on a regular basis. Often maligned as a profession, most lawyers would probably accept the positive obligation and strive to fulfil it. That deserves to be acknowledged. At moments of crisis or uncertainty, such an obligation also serves as a restraint on excess, or as encouragement to go an extra mile.

Recently, I also came across a vision of justice described as “law with a light touch”. Rather than seeking to legislate for every situation when something goes wrong or adjudicate on every claim, this is humble recognition that no legal system can correct every alleged harm or alleviate every wrong. Legislators and judges make mistakes too. It falls to each of us to do our best to help people reach an outcome which best serves their real needs. This will sometimes require a formal decision. On many occasions, it will require us to find informal solutions. The scope for this is extensive, as every lawyer knows.

In a ten-day period last year, my work as a mediator took in a number of diverse situations which benefitted from such an approach. Most involved lawyers. Anonymised to preserve confidentiality, these situations included meetings with townspeople explaining to company executives about the effects of nearby blasting work, and sessions involving a national sports body handling a sensitive issue with one of its athletes who was not permitted to compete at the level she expected. I facilitated discussions where a bank customer explained the impact of the termination of loan funding on a family business, while the bank wrestled with recovery of a large debt.

I spent hours with a senior employee as she came to terms with damage to career and reputation for which she blamed her employers. I watched the owner of a ground-breaking national facility plead with the builder to rectify faults which threatened its future, while hearing that what happened may not have been anyone’s fault, and I listened to representatives of a national insurance broker engage with an entrepreneur who had been denied insurance recovery after her life’s project had been written off following an unexpected calamity. And there was the international company negotiating with a relatively small but passionate supplier whose company had been forced to close after a change in policy allegedly resulted in loss of much of its business.

What do experiences like these have in common? Each carries with it a feeling of loss, not just in money terms but in the sense of hope, dreams and expectations. There can be a sense of grievance that someone else’s actions, over which one has little or no control, have led to the loss. Hurt, anger, resentment and a (usually disproportionate) desire to requite then follow. The mere passage of time, the length it takes to get to a resolution, can be a problem in itself. By the time the talking starts, it is often “too late”…

There is a sense of helplessness, with everyone caught up in a complex system with its inefficiencies, or downright inertia, over which nobody seems to have any influence. Perhaps worst of all is the feeling of being ignored, whether inadvertently, consciously or through lack of communication. Time and again it comes back to communication. “Why did we/they not have this conversation a year ago?” Or as a senior adviser put it: “Why didn’t somebody say ages ago to these guys that they need to sort this out?”

As mediators and lawyers, we do what we do because it matters. We are helping people, including the apparently hard-nosed, to express loss, to talk about hurt, to regain control, to communicate about awkward things. We can help them understand each other, to acknowledge and apologise, to have that conversation, to rediscover humanity.

Those mediations which led to final outcomes were concluded by the parties themselves meeting together with me (usually without advisers present, but with their full consent) and reaching agreement. That demonstrates “law with a light touch” and represents a return to self-determination which seems highly desirable.

Perhaps most important of all, therefore, is that those with whom we deal can, with our help and skill, regain their autonomy and their dignity. They can flourish. Achieving that is a worthy aspiration for us all in this new year.

Starting Out Again?

I recently had occasion to reflect on how it feels to go back to what we do after a break. The first emotion is fear. It’s been a while. You’re not sure how it will go. Last time wasn’t too great. You feel tentative and rather self-conscious. Just getting started is a struggle.

Every time you make a move, it seems rather strange. A bit uncomfortable. Clunky. You are very aware of how easily you could slip, especially at the start. You tighten a bit. You can feel the tension. Breath. Relax. Flex the muscles to release a bit of that apprehension. Remember, it’s not just about you. Others feel the same.

Gradually, it comes back. You had a good teacher. She emphasised the importance of having a really effective default method. She was right. You can improvise all you like, go off piste as it were, but you need to know the basics. And be able to implement them in practice. All those practical sessions back on the initial course. Wonder how the rest of them are doing? How many took it further?

It’s all about balance. Poise. Plus technique. The best are able to find the balance between too much structure and too much flexibility. You have to know when to slow down, even to stop and have a breather. But there is often pressure from others to get a move on. You can give in to that and it might go well for a while but….you can also crash badly. If you do, it can take just as long to get back on track. And if things do go wrong, you need a recovery technique. One which you have worked on and is likely to get you back on your feet quickly. Remember your coach, insisting that you practice those “what happens if…” moments?

Interestingly, the more you pause and take stock, and the more mindful you become about what you are doing (without becoming so obsessed with the technical aspects that you forget to go with the flow), the more likely you are to have a good run at it. After a good run, the next stages are easier. But live for the moment. The more you think ahead, the more you forget about the present and tend to anticipate things that might not be there or might never happen. If you do that, you might take your eye off the ball, off the important present moment. You might miss something really vital. So, try to stay in the present.

There is the related danger of getting it right and feeling that you have recovered mastery. And that now you can demonstrate your mastery to those who are observing. That can easily lead to a fall. You may need to take a few risks of course but remember about balance and poise.

There is another danger. The closer you get to the end, the greater is the tendency to speed up. That could lead to a big crash at the wrong time and it’s usually not just you who will suffer. That’s why the signs “rallenter/ralentir/langsam/slow” are so important at the closing stage. Indications like these, and all of the other advice, combined with a good pair of boots, should mean that your day on the ski slopes goes really well.

John Sturrock wrote this on his return to the ski slopes following a four year break. He wonders if mediators and lawyers sometimes feel the same?

The Role of Mediation in the DIFC Courts

Published with the kind permission of the author – Natasha Bakirci, Assistant Registrar – Dubai International Financial Centre Courts

DIFC logoLondon, 5 January, 2015.

The DIFC Courts, Dubai’s commercial and civil common law jurisdiction, were established in 2006 to hear disputes concerning the Dubai International Financial Centre and those doing business in, with or from the Centre. The Courts’ jurisdiction was later extended by Dubai Law No. 16 of 2011, which amended Law No. 12 of 2004 and allowed for external parties to opt-in to the Courts’ jurisdiction in writing either before or after a dispute has arisen[1]. Mediation already plays a role in the Courts’ procedure and it is envisaged that there will be more of a focus on encouraging early settlements of disputes in the future.

The Small Claims Tribunal (SCT)

The Small Claims Tribunal (SCT) of the DIFC Courts, which drew inspiration from the Singaporean model, features a formal session of mediation as part of its procedure. Claims with a maximum value limit of 500,000 AED (UAE Dirhams) can be considered by the SCT if both parties agree, or in the context of employment related matters without a value limit provided both parties agree in writing to the SCT’s jurisdiction [2].

Approximately 90% of applications before the SCT settle at the “consultation” phase which is a mandatory Court–guided mediation session. Only if the parties are unable to reach a settlement will a judge of the DIFC Courts go on to hold a hearing and deliver a Court judgment. SCT proceedings are confidential and parties are not normally legally represented.

Part 27 of the Rules of the DIFC Court (RDC) on Alternative Dispute Resolution 

Mediation is also provided for in Part 27 of the RDC which makes provision for Alternative Dispute Resolution, which was previously referred to by the term “Justice by Reconciliation” (JBR) prior to the amendment of the RDC in April 2014[3].

RDC Part 27.1 emphasises the Courts’ “primary role as a forum for deciding civil and commercial cases” whilst encouraging “parties to consider the use of alternative dispute resolution (such as but not confined to mediation and conciliation) as an alternative means of resolving disputes or particular issues.” RDC Part 27.2 highlights that alternative dispute resolution can significantly help parties to save costs, save parties the delay of litigation, enable parties to achieve settlement of their disputes while preserving their existing commercial relationships and market reputation, provide parties with a wider range of solutions than those offered by litigation and would also contribute to the more efficient use of judicial resources. Part 27 provides for judges to invite parties to consider whether their disputes could be resolved through alternative dispute resolution, either at the Case Management Conference stage or at another juncture if deemed appropriate. Furthermore, legal representatives are exhorted to consider with their clients and the other parties concerned, the possibility of attempting alternative dispute resolution and to ensure that their clients are fully informed as to the most cost effective means of resolving their dispute[4]. Despite ample provision being made in the RDC for alternative dispute resolution, there are few examples of Part 27 being implemented in practice. Specific case examples in which Part 27 of the RDC has been used include, inter alia,  the case of Dr Aziz Kurtha v. Bin Shabib & Associates (BSA) LLP & ORS (CFI 004/2008) Order of 19 January 2009 on Mediation – Justice by Reconciliation, in which Sir Anthony Colman ordered the parties to select a neutral mediator and to “take such serious steps as they may be advised to settle their dispute by JBR”; and a number of Court case management orders including that of H.E. Justice Shamlan Al Sawalehi of 2 June 2014 in the case of BGC Brokers L.P. v. Mourad Abourahim (CFI 027/2013) where the parties were ordered to exchange lists of three neutral individuals who were available to conduct ADR procedures by a certain date, and subsequently to in good faith endeavour to agree a neutral individual from the lists so exchanged and provided.

The Establishment of the Dispute Resolution Authority (“DRA”)

Dubai Law No. 7 of 2014, amending Dubai Law No. 9 of 2004, which was issued on 21 May 2014 established the Dispute Resolution Authority (“DRA”). The DRA will comprise of the following entities: (i) the DIFC Courts; (ii) the Arbitration Institute; and (iii) any other tribunals or ancillary bodies established in accordance with Article 8 (5) (b) of this Law, which empowers the Chief Justice of the DIFC Courts in his new role as Head of the DRA to set up such ancillary tribunals and establishments. There is discussion at the current moment as to whether this might allow for Court-ordered mediation through the eventual establishment of a DIFC Mediation Centre, which would in fact form part of the DIFC Arbitration Institute.

A potential future DIFC Mediation Centre 

Singapore, which the DIFC Courts often looks to as an exemplary common law system has its Singapore Mediation Centre (SMC). The SMC was established in 1997 to promote and facilitate the settlement of disputes through alternative dispute resolution. The SMC is a not-for-profit organisation structured as a company limited by guarantee by the Singapore Academy of Law. The DIFC Courts are currently considering the creation of a separate DIFC Academy, very much akin to the Singaporean model, which would cover all of the DIFC Courts’ activities which are not specifically related to litigation. As the Courts’ caseload increases, it may well be that certain cases which a judge feels would be suitable for an attempt at settlement would be sent for mediation before the Court would consider entertaining an application. This would achieve a number of the purposes set out in RDC 27.2 cited above.Continue Reading

Welcome to Our Brand New Brick Court Mediators’ Blog and Merry Christmas – please take a look around

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Bill Wood: a nightmare returns

paperstackIn common with many other advocates I used to have a recurring nightmare in which I walked into a court and was expected to address the judge while knowing absolutely nothing about the case.[1]

One night last week, after an interval of several years, the nightmare returned. I was apparently instructed to bring a claim against the makers of a well-known luxury car brand.

They for their part, unfairly as it seemed to me, had instructed the legendary Barcelona striker Lionel Messi to represent them. (He had added silk to his numerous other trophies). In the event the hearing went surprisingly well. So well indeed that we seemed to be moving on to quantum issues when I woke up.

But I digress.

The question is: why has the nightmare returned?

The best I can come up with is that it reflects the increasing tendency of parties (or rather their lawyers) to demand from me as the mediator more engagement with and more technical analysis of the legal issues.

Bluntly I’m being put on the spot. Recently two parties amended my mediation agreement to require me (the usual wording merely “permits” me) to express my views on the merits of their respective positions at the end of the mediation day if the case had not otherwise settled.

The case didn’t settle. Frank appraisals took place. As far as I could tell I left the building cordially disliked by both sides. But the following day both parties told me that the assessments had been a good platform for my continued attempts to settle the case.

The process continues. We shall see.Continue Reading

Singapore International Mediation Centre Launched


Singapore 5 November – Brick Court mediators John Sturrock QC and Geoff Sharp participated in the launch of the Singapore International Mediation Centre this week.

With an audience of over 100 government officials, academics, company representatives, legal advisers and mediators from all over South East Asia present, the pair posed a number of provocative questions about the practice of mediation and how practitioners can continue to improve it.Continue Reading

Groupement Européen des Magistrats pour la Médiation

Nicholas_Chambers_QC

Brick Court Mediator, HH Nicholas Chambers QC, writes: Groupement Européen des Magistrats pour la Médiation (“GEMME”) celebrated its 10th anniversary in early June with a symposium called “Un Chemin de Paix Pour la Justice en Europe”. Over two hundred people took part in a grand occasion held over two days in the courts on l’Ȋsle de la Cité in Paris. Contributions were made by the First President of the Court of Cassation, a distinguished representative of the French Ministry of Justice as well as senior judges and ministers from a number of states including Sir Alan Ward and Sir Gavin Lightman. All this was in addition to more specialist involvement.Continue Reading

Tony Willis introduces one of America’s leading scholars in dispute resolution

Tony-introduces-TomOne of America’s leading scholars in the dispute resolution realm was introduced by Brick Court Mediator, Tony Willis at a series of talks in New Zealand in late September.

Tom Stipanowich is a professor of law at Pepperdine University, where he is the William H. Webster chair in dispute resolution and the executive director of the Straus Institute for Dispute Resolution as well as being a noted authority on the art of mediation and Hollywood.

Tom was co-author, with Ian Macneil and Richard Speidel, of the groundbreaking five-volume treatise Federal Arbitration Law: Agreements, Awards & Remedies Under the Federal Arbitration Act. The book has been cited by the Supreme Court and many other federal and state courts, as well as being named Best New Legal Book by the Association of American Publishers.

Speaking at the Victoria University of Wellington and an AMINZ Wellington breakfast meeting before going to Auckland to speak at the Law School and Bankside Chambers Tom and Tony spoke on  “Mediation from the Inside Out: Insights from an International Survey of Experienced Mediators” and “International Mediation and Conflict Management:  Near a Tipping Point?”