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UN General Assembly Adopts Text Inviting Member States to Make Most of Mediation in Peacefully Settling Disputes
Resolving Sports Disputes
Sport, many believe, offers fertile ground for mediation. And with good reason: intense media scrutiny, new-found wealth from broadcasting rights, and a business mentality that owes more to the amateur tradition than the sums involved demand, makes for a toxic mix. Add to this the legal uncertainties of operating cross-border for internationals, and sport becomes a greenhouse in which damaging disputes are permited to flourish.
Even at the top level of professional sport, for many clubs, solvency remains a challenge. Funds for litigation, therefore, are out of the question. Management time is also at a premium, especially given that so much involvement is unpaid. Sponsors, of course, drive the business of sport, and highly sensitive to adverse publicity. Mediation, therefore, is a pragmatic solution to many of sport’s challenges. Nevertheless, it remain underused.
An opportunity exists to explore and develop these ideas and contribute to an important white paper on the future of sport at the LawAccord interactive workshop in London on 5 April. Readers are warmly encouraged to particpate.
Places are still available: a conference flyer can downloaded here.
CMC in “Good Heart” to face future challenges following 2011 Board Elections
Civil Mediation Council (CMC) Members voted last week for a largely unchanged board to guide the professional through the challenges of the next two years.
84 members voted for a new Board, which sees the return of Amanda Bucklow, and the appointment of new member Philip Bartle QC. They join board members Bill Wood QC (vice chairman), Heather Allen, Paul Randolph and Andrew Paton who retained their seats.
In what many see as a surprise result, long-serving Board member and organiser of the CMC annual conference, Judith Kelbie, lost her seat on the Board in 2011, despite being the single highest polling candidate in 2009 with 61 votes (see chart below.)
Other upsets include the absence of the Former CMC Honorary Secretary, Jonathan Dingle, who resigned in July 2010, and whom many expected to return to the Board as a representative of Trust Mediation.
In response to disquiet in some quarters about attendance levels at Board meetings, new rules new codes of conduct for board members will include rules on truancy.
Chairman and Vice Chairman of the Board remain Sir Henry Brooke and William Wood QC, respectively. Clive Lewis of Globis will continue to serve as secretary.
Welcoming new members and thanking outgoing members, William Wood QC said, “This is a very exciting new board after a hotly-contested election. We have lost some very hard-working Board members (to them huge thanks for their hard work) but gained some very good new blood. This Board will face big challenges. That is already obvious. But I think this election leaves the CMC in good heart to face them.”
Workplace mediation to grow in importance following government consultation
The launch today of the “resolving workplace disputes” consultation by the Department for Innovation, Business and Skills (BIS) outlines a set of proposals aimed at ensuring swift and early resolution of employment claims within the workplace. While the proposals will likely strengthen the hand of workplace mediators, critics are already raising concerns about claimants’ access to justice. Proposals include measures such as charging fees, increasing the cap on costs awards, increasing the level of deposit awards, and removing payments for the expenses of witnesses.
Commenting on proposals, Philip Henson, an employment partner at Bargate Murray, said the consultation, “sketches out a roadmap to fundamentally change the current tribunal system into a more business friendly model.” He continued, “these proposals will not go down well with claimants and unions.” Of particular concern, Mr Henson highlighted the “derisory level of detail” about the proposal to introduce fee charging mechanisms into the Employment Tribunal system,” and concluded that, “workplace mediation will clearly become of increasing importance.”
JAMS To Open London Dispute Resolution Centre
New Managing Director, Lorraine M Brennan
JAMS International is to continue its expansion in Europe under newly appointed managing director, Lorraine M. Brennan. Ms Brennan is the former senior vice president of Programs and International at the CPR Institute, and joined JAMS International on 17 January. Ms Brennan will manage the opening of a new London Resolution Centre and negotiate the entry of new EU partners and panelists as part of JAMS International.
“We are very excited to have someone of Lorraine’s caliber join our team and lead this international initiative,” said Chris Poole, President and CEO of JAMS. “Lorraine’s ADR experience in both the United States and Europe is the perfect fit for this newly created role.”
“Lorraine’s expertise will be an enormous boost to our presence in Europe,” said Giuseppe De Palo, President of ADR Center, Co-Founding Partner of JAMS International. “We are gathering the most talented practitioners to lead this effort and ensure its success.”
“JAMS and ADR Center are among the best ADR providers in the world, and I am delighted and honored to be leading their European expansion,” said Ms. Brennan. “It’s an incredibly exciting time to be working in the field of international ADR, and I have no doubt that JAMS International will make a tremendous impact.”
Ms Brennan joined CPR Institute in 2008 and helped direct their programmes and initiatives and also managed CPR’s expansion internationally. Prior to her tenure at CPR, she was a partner in the New York office of Kilpatrick Stockton, LLP, where she was the Director of the firm’s International Arbitration Group. From 1999-2006, Ms. Brennan served as Director of Arbitration and ADR, North America for the Paris-based ICC International Court of Arbitration. In that capacity, she advised attorneys and companies on all phases of ICC arbitration.
JAMS and ADR Center in Italy created JAMS International in 2009 to provide mediation and arbitration of cross-border disputes and training services worldwide. JAMS International is headquartered in New York and Milan with additional hearing locations in Brussels, Geneva, London and Rome.
Win-win is for losers
Matthew Rushton, editor
In late 2006 or early 2007 when I first thought about launching The Mediator Magazine, I wanted to call it Win-Win. Luckily someone else had bagged the domain name. At the time, I not only thought it was a zippy title for a magazine, but I thought it captured the essence of what was striking, inspiring and different about mediation.
But I’ve moved on. I no longer think attempting to generate win-win scenarios is mediation’s biggest asset; I suspect that in terms of growing the market it might mediation’s greatest stumbling block. Why? I’ve commented elsewhere on what I believe is the astonishing gulf between mediation as discussed in seminars, conferences and text books, and the shambolic, undignified climb downs I’ve witnessed in real mediations. I can’t help but cringe when I read, for the thousandth time, the apocryphal, and now horribly clichéd, story about the marmalade maker and the orange juice manufacturer agreeing to share a consignment of oranges. I first read this anecdote, I think, in Getting to Yes, published in 1981. And it’s been repeated in almost every publication about mediation since. Where are all the fresh, new and inspiring examples? Thirty years on, there don’t appear to be any, and I think that’s significant.
It seems to me that the mediation community is both teaching and selling an overly idealised model of mediation which is appropriate for only a minuscule fraction of civil and commercial cases. Were mediators to pursue a model of managed negotiation, and set aside ideas about venting and brainstorming options for mutual gain, I have reason to believe that the market would be more receptive.
Fraley: there for duration
The UK’s Andrew Fraley is an interesting case study. Granted he’s been involved in mediation as long as anybody, and has therefore had time to build a practice, but his approach is illuminating. Fraley is sometimes dismissed as a “salesman,” which he’s happy to take as a compliment. His name is also routinely attached to the notion of time-limited mediation. He says no such thing exists: the mediator’s there for the duration. What he does offer, for a comparatively modest cost, and usually delivers, is a result in three or four hours. And clients are clamouring for his services. He does no marketing, but comfortably pulls in around 100 mediations a year. Overwhelmingly it’s repeat business: in 60% of his cases, he’s worked with the firms on both sides before. One can only conclude that Fraley’s product is meeting a demand.
What is Fraley doing that’s different? Over 90% of his cases are “money cases” and he focuses on just that. In Fraley’s mediations, it’s not uncommon for offers to be made in the first half hour. It works. Fraley is unabashed about taking sub-£250,000 disputes, and in particular County Court-level matters. Why? It’s where the work is.
Mediation training and teaching is geared almost exclusively towards mega cases. Very few of these are mediated. If the Magic Circle law firms, plus Herbert Smith, are involved in over 200 mediations a year, I’d be amazed. Mediation is so peripheral to those firms’ activity that most, now, don’t keep figures.
Is mediation capable of changing to meet demand? Maybe. But beware the “shiny eyed zealots” identified by Professor Hazel Genn: they preach flexibility, but take a suffocatingly narrow of mediation. Perhaps they should try some of their own medicine: it’s not about what mediation should be, it’s about what it could be. So if it’s work you’re after, drop the win-win stuff, stop the hopeless brainstorming sessions, stop blaming the lawyers and start targeting County Court work. Mediation is great, but that doesn’t mean it can’t be better. And don’t let the zealots tell you otherwise.
CIArb calls for code of practice for mediators
All mediators should be subject to a code of professional conduct enforced by a disciplinary procedure, but the profession should not be regulated through legislation, according to the Chartered Institute of Arbitrators (CIArb).
The Institute emphasised its position ahead of implementation of the European Mediation Directive 2008/52/EC on 21 May 2011, during a debate on the topic of by delegates of CIArb’s Third Annual Mediation Symposium on Wednesday 27 October.
Under the directive, European member states are required to encourage the development of and adherence to voluntary codes of conduct by mediators and organisations providing mediation services.
Tony Marks MCIArb, CIArb’s Director of Legal Services, who helped to organise the symposium, said: “This year’s symposium explored the topic of how to create confidence in mediators and the process. Despite growing use of mediation, there is still some reluctance and wariness of the process by lawyers. If all mediators were subject to a code of conduct, monitored and enforced by mediation accrediting bodies, it would help to give lawyers confidence in mediators and more certainty in the process, while still allowing mediators the flexibility and diversity which are the hallmarks of mediation practice. It’s also essential that rigorous standards of training and professional development are provided by training bodies.”
“CIArb’s position reflects the consensus of most members and delegates that mediators should not be regulated through legislation but, under the framework set out by the European Union, mediators should effectively be self-regulated by the profession’s accrediting bodies. All CIArb members are subject to a professional code of conduct backed up by a robust disciplinary procedure and there is no reason why the whole mediation community cannot have a code of conduct which would set out a benchmark for mediation practice.”
Professor Nadja Alexander, Adjunct Professor of Law in Hong Kong, delivering one of two keynote lectures, argued for a regulatory mix governing mediation, and said that the question was not whether or not to regulate, but how different aspects of mediation should best be regulated to support the profession. Regarding mediation standards, she said: “Even sophisticated users are not always sure as to where to find a good mediator and how to judge the mediator’s performance. The mediation community needs to be accountable for the services it provides and set clear benchmarks for the benefit of users.”
She said it was important to recognise the rights and obligations of parties in mediation when they leave the mediation process: “We require robust regulation on confidentiality in the process, enforceability of mediation clauses and settlements and mediator liability in order to ensure legal certainty and clarity to users.”
MATA to Offer Revamped Mediator Training Course
Leading civil/commercial mediator training outfit, MATA, has revamped its course as of October 2010. Led by David Richbell, Jane Gunn and Aled Davies, the course aims to:
• Accelerate learning in a dynamic and fun environment
• Build a high level of knowledge, skill and experience
• Quickly create competence and confidence
• Equip you to mediate in a variety of commercial situations including complex multi-party and highly emotive cases
Further details are available here
Birthday Gong for CEDR Chief
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Dr Karl Mackie, CBE
CEDR chief executive, Karl Mackie, became the first recipient of a CBE (Commander of the Order of the British Empire) for ‘services to mediation’ in June 2010.
The award is recognition for Karl’s work for CEDR and the wider mediation market over a 20-year period.
Offering his congratulations, CEDR chairman, Sir Peter Middleton, said, “This is an outstanding recognition for the achievements of CEDR in the last 20 years and for Karl personally.”
Dr Mackie has been CEDR’s only chief executive since the organisation was founded with the support of the CBI in 1990. He is acknowledged to be one of the world’s leading practitioners in mediation and has mediated high-level disputes since 1980.
Dr Mackie has worked with numerous international governments and professional bodies at CEDR, such as the United Nations, the European Commission, World Bank and International Finance Corporation, UNCITRAL, and many companies and government departments. Most recently he personally consulted with the Federal Government of India on how to establish its own International Mediation Centre.