Civil justice reforms and the balance of power

Almost all mediations are strongly affected by cost considerations. Many are completely dominated by them. Costs are a crucial element in the weighing of risk and reward that parties are being asked to engage in at a mediation and mediation’s big attraction is often that it gives the parties the chance to settle and to “stop the clock”.

So it is unsurprising that the changing machinery for the incurring and recovering of legal costs in our civil procedure system is a matter of enormous interest, indeed concern, to the mediation community.

The Super-claimant

Mediators got used to working in the CFA/ATE universe. It had its problems but we got used to it. It was always difficult to negotiate with the “super-claimant” who had passed all the risks of defeat to a combination of his lawyers and his insurers. “Bill, what incentive do I have to settle for that?” such a Claimant would ask. “There is simply no down-side for me in fighting on.” The obligation to pay the lawyers and the ATE insurers (and often the funders too) might well mean that until a very substantial sum of money indeed had been tabled at a mediation, the super-claimant him- or herself was getting nothing.Continue Reading

It only takes a few moments…

It was just a few moments. “You can’t play on our course without proper golf shoes.” “But we played here two days ago in these shoes.” “My colleague must have made a mistake”. “But it was you who let us play…”. “It’s in our rules.” “Where?” “Here.” “No it’s not. There is nothing about soft spikes. Only shirts with collars…”

Those few moments remain seared on my brain. Out of the window went respect and courtesy. The trigger had been triggered. After a futile exchange, we grudgingly accepted the starter’s offer of golf shoes to wear, free of charge. And then there was the “you must have a bag each” rule. On a hotel 9-hole course? Forgive me but…..

My first drive was OK. Scrambled a par. On the par 3 second hole, my drive was short and the chip long, pumped with adrenalin. My drive at the third fairly bulleted towards the trees, where a passing youngster helpfully picked up my ball and came towards me, offering it to me with a smile.Continue Reading

An Asian Switzerland, Expectation and Regret

Having last week returned to New Zealand from Singapore where I was honoured take part in the launch of the ICC Mediation Rules, I saw first hand the support for mediation in Singapore from powerful institutions like the Singapore Judiciary and the Ministry of Law.

Singapore, and my guess is Asia in general, is in the grip of a trade boom – from my hotel window it showed. I counted well over 100 large ships at anchor in the bay awaiting their turn to come along side the container  port.  This amazing country, lacking in land and natural resources of its own, unloads raw materials and later exports them after refining, value adding and reshaping them. In this way, Singapore has become the world’s busiest transshipment port.

I was in no doubt that I was in the footsteps of many neutrals before me who, down through the ages, had learned to follow the trade routes in an effort to ply their craft.

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