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Geoff Sharp  We all stand on the shoulders of our own Henry Browns. And one day I will tell you about mine.
But for now, I imagine many UK mediators look to Henry Brown as their Henry Brown.
This interview is a thoughtful look back at 25 years of life as a UK mediator.
In particular, Brown makes the point that the mediation process has not dealt well with the strong sense of fairness brought to the table by the many who use it.
‘We’ve got to do more work on understanding people’s attitudes towards their disputes; their ownership of disputes; their investment of energy into that dispute and how to help them find a way through that isn’t based on something they will perceive to be unfair. It’s a packaging issue,’ he concludes, ‘but it’s a substance issue too...
Systemically I think we’ve caught ourselves up in not giving enough attention to people’s sense of fairness and right and wrong. Where necessary I deal with fairness if only to get it on the table so both sides can be heard and understand what each other’s sense of fairness is. They might conclude, “we can’t agree, now we’ll deal pragmatically with what’s in the future,” but you can’t dump history and excise it,’ Brown concludes. [read more]
I don't know about you, but fairness, that's a tall order - I nailed my colours to the mast in my last post when I offered a view of negotiation in mediation as 'often unprincipled and pragmatic, not weighed down by 'the case', but more about what can be achieved around that table on that day with that amount of talking behind them' - and I'm not sure that fairness is a packaging issue at all...
Keith Seat
Pricing for mediation services is said to be in a nascent phase in which lack of information has not allowed the market to adequately value mediation and reward outstanding mediators. While top U.K. mediators charge around $10,000 a day, that is often less than top lawyers charge for attending the mediation as advocates, which arguably should be the floor. The mediation profession will not mature until high-end practitioners have the confidence to charge high rates and compete on quality.
Themediatormagazine.co.uk – UK (May 9, 2008)
Keith Seat
A debt recovery service in the U.K. attributes its rapid growth to focusing on mediation rather than litigation. In addition to obtaining payment, the service seeks to rebuild business relationships between its clients and their debtors, and brings a friendly approach to its work. However, the service emphasizes that it has a 100% win rate in the small number of cases it is forced to take to court.
ic Wales (U.K.) (May 30, 2008)
Geoff Sharp In a kiss and tell article in the latest issue of The Mediator Magazine all is revealed about UK mediators' charge out rates in The Price is Wrong
"... Setting charge-out rates for mediators is a complicated and sensitive issue. In the UK the market is so oversupplied that if the number of commercial cases available were distributed evenly among accredited mediators, no mediator would be handling more than one a year. Under such market conditions, pricing is emotive, and competition sharp....
The results, with a few exceptions, demonstrate just how insecure the profession is at present. The underlying sentiment behind offering reduced rates for ‘convincing sob stories’, not charging for hours over the quoted-for eight or 10-hour thresholds, and not billing for too much preparation time is that mediators should be grateful for the work at any price. Among those mediators who did not want their rates published, a common sentiment was that clients immediately identify them as too expensive. Others still don’t have quoted rates and pitch for each job on the basis of what they think might get them the work...
Until the market can identify with certainty who the top mediators are and those mediators limit themselves to the top cases and charge properly for them, mediation is doomed to a future of weakness and desperation" [read more]
Keith Seat
The leading U.K. trade organization opposing design theft has launched a national campaign to encourage mediation of intellectual property disputes. The organization, known as ACID (Anti Copying in Design), launched its pro-mediation campaign with the slogan “Mediate to Resolve” on the group’s tenth anniversary in April. However, ACID has long been involved in resolving disputes, with a mediation panel chaired by a former High Court Judge and a countrywide network of mediators. ACID has handled 2,000 mediations and states that only a handful have gone on to court, as most result in royalty or licensing agreements. ACID’s mediation campaign is supported by the Minister for Intellectual Property.
ITNews(Rome) (April 7, 2008)
Geoff Sharp  Now that I've been a mediator for a while it's too easy to forget those early days when I was discovering mediation as an advocate in the courtroom one day, and feeling my way in a mediation the next.
It sure was hard to make the switch.
My head was always playing catch up, so I was still in rights mode at the start of the mediation and desparately looking for interests in the litigation when I struggled to my feet at the bar table at 10am the next morning.
So, in another sign that our mediation industry continues to mature, UK lawyers who represent parties at mediation now have their very own organisation dedicated to building a greater awareness of the differences between advocacy at mediation and advocacy at court.
And as a added benefit, this will be welcome news for all those mediators who listen, day in and day out, to advocates trying to persuade them of the legal merits of a case.
The Standing Conference of Mediation Advocates is a 'multi disciplinary cross-professional membership trade organisation established to promote and deliver best practice and professional excellence in mediation advocacy through individual and corporate training and commercial activities'.
The Forum for Mediation Advocacy is 'aimed at lawyers, accountants, property and HR professionals, trade union representatives and other advocates who represent clients in mediation'
The Standing Conference of Mediation Advocates will launch in a week or so at 6pm 26th February 2008, Blake Lapthorn Tarlo Lyons Solicitors, Seacourt Tower, West Way, Oxford. OX2 0FB [more detail]
Keith Seat
An annual survey of hundreds of senior corporate counsel on litigation trends states that half of the companies settled all or the majority of their cases prior to trial or arbitration hearing. Mediation was used in settled matters about half the time or more by 50% of U.S. companies and by 75% of U.K. companies. In the U.S., use of mediation is notably higher in the Midwest and New England than in other parts of the country. Among industries, mediation appears to be used much more frequently in Retail/Wholesale, Financial Services and Education, and less frequently in Real Estate, Tech/Communications and Manufacturing. Overall, the number of lawsuits filed was down from the previous year, although the number of cases involving $20 million or more is increasing.
Fourth Annual Litigation Trends Survey Findings (Registration Required); Survey Data
Keith Seat
Mediation is an increasingly preferred mode of resolution of commercial cases pending in Scotland’s courts. In particular, mediation is playing a much bigger role in resolution of construction disputes, where regaining control appeals to the parties. Even disputes that are not immediately resolved in mediation often settle before final judgment because of the mediation effort.
Scotsman (General) (November 7, 2007) (Subscription Required); Scotsman (Construction) (November 7, 2007) (Subscription Required)
Why World May Be Ready For A New Edinburgh Conversation
John Sturrock In the early eighties, Edinburgh was the discreet venue for a series of meetings which arguably played a significant role in the ending of the Cold War. Known as The Edinburgh Conversations, the meetings were chaired by the then Principal of Edinburgh University, Sir John Burnett, and were the brainchild of the head of the University’s Centre for Defence Studies, Professor John Erickson. John Erickson was a leading world authority on the Soviet military, admired and welcomed in the Kremlin and the Pentagon.
Keith Seat
A campaign to raise awareness about the benefits of mediation in resolving disputes has been launched in Scotland. Scots are celebrating the growth in community mediation - from none 12 years ago to services in 31 of the 32 Scottish local authority areas today. The Edinburgh service alone dealt with 446 referrals over the past year.
The Scotsman (October 3, 2007)
Keith Seat
In its efforts to reduce gang violence and murders, the police force in Manchester, England is looking to Northern Ireland’s use of mediation in the late 1980s which helped Catholics and Protestants break the cycle of retaliatory violence and ultimately settle their issues. The process under consideration involves using community members as mediators between rival gangs in a police-sponsored program, which is already under way in Birmingham.
Manchester Evening News (August 7, 2007)
Geoff Sharp  One of my welcome duties at the LEADR conference this week is to conduct a couple of interviews.
And I am doing this by a turbo charged video link, as you might expect from the 'Future Tech Stream Convener' (I do hope I get a name badge with that title).
Barring any technical snafus, I am looking forward to conversations with two of the movers and shakers of the DR world - with Mike Lind, Managing Director of ADR Group, Bristol in the UK and with Jim Melamed of Mediate.com, Eugene, Oregon.
They will be horrified at the prospect, but I want to highlight each of their contributions prior to speaking with them and ask you, dear readers, what questions or comments you have for them.
First, lets put the spotlight on Mike.
I met Mike in LA a few years back when we ended up in one of those awkward situations after unexpectedly being told to break into small groups at an ABA conference session. When we all sat and looked at each other, Mike rescued us and even volunteered for the short straw of 'reporting back' to the group.
The official blurb on Mike is that his;"... primary function is to raise the profile and spectre of the ADR Group as a leading provider of dispute resolution services. Working closely with over 450 ADR Group mediators, Mike is committed to ensuring the Group provides a first class service to parties in dispute, whether the subject matter is legal, commercial or matrimonial in origin. Mike plays a key communications role working with the Group company directors, senior management and all ADR Net members"
[But I know Mike to be an obsessive rugby fan who supports his native South African Springboks or the English team, which ever team has their nose in front at the time. And after the weekend it's certainly SA. No, strike that - actually Mike supports anyone playing against the mighty New Zealand All Blacks.
And, as I write this the 3rd largest sporting spectacle in the world, the 2007 Rugby World Cup is underway in France after four long years of waiting and both of us are glued to the TV]
When Mike and I Video Skyped last week to scope our interview I learnt how truly energetic his ADR Group really is.
ADR Group has a three prong mantra:
1.Teach - the broadest programme of dispute resolution training courses in the UK - from mediator accreditation to advanced dispute resolution courses.
2. Talk - consultancy and bespoke solutions for organisations requiring tailored dispute resolution services.
3. Resolve - cost-effective, professional dispute resolution for business, the workplace or the family.
When I asked Mike to focus on online dispute resolution he described how the Group is currently involved in these 3 projects, amongst others;
1. National Mediation Helpline was set up in 2005 by the UK Ministry of Justice in conjunction with the Civil Mediation Council to provide information about mediation and access to mediators. ADR Group, covering all 42 court regions in England and Wales, has played an instrumental role in the success of the Helpline to date. ADR Group has an average settlement rate of 75% compared to a Helpline average of 66%.
2. Online dispute resolution provider - Following a successful first phase, the leading online payment service, PayPal, have now contracted with TheMediationRoom.com and The ADR Group to run the second phase adjudication pilot for disputes on eBay transactions including retailer sales
3. Official Trade Visit to South Africa next month by the Lord Mayor of London - a project aimed at raising the level of awareness of commercial mediation in South Africa. Instead of going in through the conventional legal channels, ADR Group is linking in with the Lord Mayor of London's visit to SA which gives the Group access to the business and finance community and will give mediation the credibility it deserves. ADR Group will also be speaking with the SA legal profession - at the same time as the key business decision makers to encourage commercial mediation in SA.
How Mediate.com Helps Mediators
James Melamed Mediate.com is in its 12th year. Now averaging over 15,000 daily visitors, Mediate.com site traffic is growing at a rate of 35% annually. Mediate.com is #1 for "mediation" at Google. These are meaningful accomplishments. In this article, Mediate.com's CEO focuses specifically on how Mediate.com benefits mediators.
Keith Seat
Mediation is crucial for those unable to afford the risks and costs of litigation, according to a strongly worded editorial by British High Court Justice Gavin Lightman. However, mediation was set back by the appellate decision in Halsey v. Milton Keynes General NHS Trust, EWCA (Civ) 576 (2004), which refused to order parties to mediate over their objections and required a litigant seeking costs for an opponent’s refusal to mediate to carry the burden of proving the refusal was unreasonable. The importance of these issues is heightened by the government’s limitation on civil legal aid.
TimesOnline (July 31, 2007)
Geoff Sharp
 CEDR's Annual Review 2006 is just out.
Highlights include;
1. CEDR arranges three mediations every single working day of the year - not a bad effort in this age of over hyped mediation stats
2. CEDR has a annual turnover of £4 million from dispute resolution provision and training services
3. CEDR had its 12,000th mediation referral in 2006 and mediated over 650 major cases
4. 284 new mediators were trained by CEDR in 2006 and over 2000 law
firms, corporations and government offices called on CEDR’s services during the year
5. Thirty new mediators were added to CEDR's panel in 2006
CEDR case numbers have climbed fairly consistently since 1997-
Big winners in 2006 were increases in property, employment, construction, partnership and "other" cases-
Does the future belong to increasingly global provider panels like CEDR and JAMS?... one hopes not.
Geoff Sharp
A senior High Court judge last week criticised the Court of Appeal’s thinking on mediation in the key decision of Halsey v Milton Keynes NHS Trust, which he said was ‘clearly wrong and unreasonable’
Mr Justice Lightman said that the use of mediation is being stifled by the Court of Appeal’s decision in Halsey, in which it laid out that parties could not be forced into mediation and that the burden for ‘proving reasonableness’ over refusing to mediate is not on the party that refused [read more].
Whilst one might follow that logic, he went way to far when he advocated 'forcing people to go to mediation before a trial' - a recipe for disaster - such an approach in mainstream civil/commercial courts being consistently opposed by this blog.
Confirmation enough that the Judiciary should stick to their knitting, whether they are still in the saddle or looking for a retirement project.
One reaction here
Previous Halsey post In the Goldilocks Zone
Keith Seat Interim results from an ongoing survey of U.K. construction litigation conducted by the Technology and Construction Court (TCC) and King’s College, London, reveal that much mediation of construction disputes is occurring, but litigants are not interested in the TCC’s pilot project to provide judges as mediators. Of the many cases settled, about one-third were resolved through mediation, with most of the rest settling by direct negotiations. Of the mediations conducted, four-fifths occurred at the parties’ own initiative, generally with use of a limited number of well-regarded barristers and construction professionals as mediators. During the first year of the TCC pilot program, litigants have been willing to use judges as mediators only twice.
Mondaq (June 26, 2007) (Subscription Required or Direct with Registration); The Lawyer.com (July 4, 2007)
Keith Seat An international reinsurance protocol for resolution of disputes between reinsurers and reinsureds has been launched by the CPR Institute (the International Institute for Conflict Prevention and Resolution), based on work with insurance companies in both the London and American markets. As in the U.S., mediation is emerging as a preferred method of resolution in the London insurance market, with insurers increasingly dissatisfied with the uncertainties, costs and delays of both arbitration and litigation. The International Reinsurance Industry Dispute Resolution Protocol sets out a comprehensive method for identifying reinsurance disputes early in the process and a short timeline for information exchange, quickly followed by negotiation and mediation as needed. Although parties do not waive rights to arbitrate or litigate, the protocol is expected to give them more control and minimize financial uncertainties, allowing companies to manage their exposure and reserves more effectively. The benefits of this general approach were highlighted by the insurance industry’s response to Hurricane Katrina, where opting to mediate reinsurance disputes avoided the extensive litigation anticipated by many. However, the ultimate success of the protocol and this trend will depend on the extent to which underwriters incorporate the protocol’s provisions into their contracts.
Financial Times Limited (May 31, 2007) (Subscription Required); CPR Reinsurance Protocol
Scotland And The UK Negotiate A New Arrangement?
John Sturrock “In a joint statement issued yesterday by the Leader of the House of Commons at Westminster and the Presiding Officer of the Scottish Parliament it was announced that negotiations had been successfully completed between the two parliaments on the new constitutional arrangement between Scotland and the rest of the United Kingdom. The statement recorded that the guiding principles of co-operation and reciprocity which underscored the historic agreement heralded a new era of prosperity and recognition of mutual interests from which all would benefit.”
Keith Seat While many sets of chambers in England now have dedicated arbitration practices, Exchange Chambers, a top thirty set in London, is the first to develop a dedicated mediation group, with a third of its barristers becoming accredited mediators. The head of chambers stated the move is based on the dramatic increase in the number of cases being resolved in mediation.
The Lawyer (March 29, 2007)
Keith Seat Concerned about the potential for governmental regulation, the Scottish Mediation Network plans to institute a voluntary register for mediators and trainers who meet certain benchmarks. The group, comprised of professional mediators, notes that there have not been problems with mediator quality but believes that creating a register would increase consumer confidence and improve access to mediation.
The Scotsman (April 10, 2007)
A maritime law conference in England reviewed various means of resolving disputes, with a Court of Appeal judge noting that the objective of every process is to identify the real issues and settle the case. The Civil Procedure Rules now provide great impetus for mediation, and commercial courts encourage – but do not require – mediation by delaying the litigation to give time for the process, which could reduce problems from settlement on the courthouse steps. But despite mediation’s benefits and successes it has not yet become as popular as expected. Explanations ranged from reluctance of lawyers to lose substantial legal fees when cases settle to lack of regulation of the mediation profession which is now being addressed by the Civil Mediation Council. While mediation can proceed quickly to resolve disputes, it was noted that arbitrations – which remain common in the maritime industry – usually take three or four months for small claims, with an extreme arbitration case lasting eleven years.
Lloyd’s List International (February 14, 2007) (Subscription Required)
A joint statement used in mediation by the parties’ experts in a construction dispute was held not to be privileged by the UK’s Court of Appeal, reversing the Technology and Construction Court (TCC) in Aird v. Prime Meridian Ltd. Rather than considering the intent of the trial court, the appellate court focused on the fact that the court mandated the joint expert statement using a litigation form and that the experts had agreed to remove the “without prejudice” designation. The Court of Appeal explained that a joint expert statement could only be ordered for litigation under the court’s rules and so would not be privileged even though it was used in mediation.
Aird v. Prime Meridian Ltd., [2006] EWCA Civ 1866 (Court of Appeal) (December 21, 2006)
The European Commission recently committed to use mediation and other forms of alternative dispute resolution in disputes with contractors, many of whom have complained to the Commission Ombudsman. The Commission previously endorsed mediation as a better way to resolve disputes, and proposes to include an optional mediation clause in its standard procurement contracts. While the Commission states it cannot require contractors to mediate disputes with their subcontractors, the Ombudsman is encouraging the Commission to recommend mediation in such situations, as well as using mediation in disputes over grants made by the Commission.
US Federal News (December 18, 2006) (Subscription Required)
The U.K. Department for Constitutional Affairs (DCA) and Her Majesty's Courts Service are sponsoring Mediation Week from October 9-13, with presentations, seminars and mediation demonstrations taking place in participating courts across England and Wales. The week is part of DCA’s Proportionate Dispute Resolution strategy to ensure justice by increasing awareness of rights, responsibilities and resolution alternatives.
HMCS Mediation Week; Mediation Week Events
The Irish government will pay “walking managers” to resolve disputes in the Irish countryside between farmers and hikers over rights of way and acceptable routes. The mediators will be empowered only with their dispute resolution skills and will not have any enforcement authority. The government will select local mediators who know the region and intends for them to be on the scene or available by cell phone in order to resolve disputes before they escalate.
The Sunday Times – Ireland (September 3, 2006)
A pilot program in which judges will mediate construction disputes has begun in the UK’s Technology and Construction Court (TCC), despite lack of support from solicitors or the alternative dispute resolution community. Mediations may be handled either by the judge in charge of a case or another judge, with all mediating judges receiving special dispute resolution training. While critics raise concerns about the role of judges as mediators and potential damage to the court’s reputation, the TCC Bar Association supports the mediation program because participation is voluntary. The pilot program began June 1 and will continue until July 2007.
Lawyer (June 5, 2006) (Subscription Required)
While UK courts strongly encourage mediation, they have been reluctant to simply order parties to mediate, and have instead imposed sanctions on litigants who unreasonably refuse to mediate, even if the party is ultimately successful in litigation. In a significant line of cases, UK courts are making increasingly nuanced decisions about whether the refusal to mediate was unreasonable, looking at factors such as the nature of the dispute, the merits of the case, whether delay for mediation would cause harm, whether mediation had a reasonable chance of success and the extent to which mediation was encouraged by the court. Some decisions have recognized that looking into whether a refusal to mediate was unreasonable may involve sensitive issues of mediation confidentiality and privilege, and note the need to avoid questions of why mediation may not have resulted in settlement.
The Journal (Newcastle England) (May 2, 2006) (Subscription Required); Detailed Article
Updated Civil Procedure Rules encouraging mediation and other alternatives to litigation went into effect on April 6 in England and Wales. Notably, “pre-action protocols” were amended for personal injury (PI) claims to encourage negotiation and mediation, which are common for other types of claims. While there has been resistance to mediating PI cases in the UK, use of mediation is increasing and the success rate in PI cases is said to exceed 90%.
Civil Procedure Rules
PI Pre-Action Protocol
Post Magazine (March 9, 2006) (Subscription Required)
Estates Gazette (March 11, 2006) (Subscription Required)
The UK Patent Office began a new mediation service in April for resolving intellectual property (IP) disputes. The Patent Office provides accredited mediators for IP disputes at a set rate of 1,000 pounds/day (in London), as well as a lengthy list of independent mediators that parties can choose to hire directly. Detailed information about the new service and various aspects of mediation is available on the Patent Office’s website. The Patent Office also provides useful model mediation procedures and an agreement to mediate.
UK Patent Office Mediation Service; Model Procedures and Agreement
A new international alliance launched the UK-China Mediation Centre in April, with locations in Beijing and London. The alliance is between the Centre for Effective Dispute Resolution (CEDR) and the China Council for the Promotion of International Trade. The focus is on mediating disputes between Chinese and European businesses to avoid the need for arbitration or litigation.
Lloyd’s List International (4/12/06) (Subscription Required)
Transatlantic Dispute Resolution
Eric van Ginkel The recent expansion of the European Union is likely to lead to a further, dramatic increase of the number of transatlantic disputes. The only efficient way to deal with them is by mediation or a similar alternative dispute resolution method, followed by arbitration if the mediation fails to lead to a settlement.
Mediation Takes Hold in Scotland
John Sturrock Scotland is famous for its innovation and willingness to try to address the
challenges of modern life through creative thinking. Despite this, in the past few
years in Scotland, there has been a cautious approach to mediation and other forms of
consensual dispute resolution. However, mediation in Scotland, once closely
associated with only family disputes, is now increasingly being chosen by those in
civil and commercial disputes as their preferred option for dispute resolution.
Mediators in Need of Momentum: ADR in Europe
Michael Leathes, Avi Schneebalg Mediation got off to a good start in Europe. Heralded as a solution to clogged-up courts, spiralling legal fees and business relationships torn apart by gladiatorial lawyers, it enjoyed a big initial take-up in some countries during the early and mid-1990s. However, the movement towards alternative dispute resolution is in danger of stalling in Europe.
Developments in ADR: The Irish Equality Tribunal's Mediation Service
Ruairí Gogan Mediation at the Equality Tribunal is an innovative new service that offers the parties in a discrimination case the opportunity, if they wish, to reach an agreed settlement. An analysis of the results achieved since Christmas 2000 show that in 50% of cases, a mutually acceptable agreement is reached between the parties.
Mediation in the UK- at the crossroads?
Karl Mackie Has mediation failed to make its mark? CEDR’s mediation statistics, the only annual benchmark of commercial mediation in the UK, showed mediation growth to be at a virtual standstill last year. Anecdotal reports from other mediation providers and individual practitioners mirror this. So, are commentators right to paint a gloomy outlook for mediation?
George Mitchell: Role Model for Mediation
Geoffrey Corry There is much that we can learn by reviewing the strategies and process interventions used by George Mitchell and his mediation team in facilitating agreement in Ireland. Seven key aspects of Mitchell's work are highlighted in this article from the editor of
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UK News
7/07: Sharia law could be "basis of mediation" declares Lord Philips read
7/07: Mediation grows as firms see the benefit of finding common ground read
7/05: Muslim jurists welcome UK chief justice's support for sharia role in mediation read
7/02: Mediation should be used more to resolve workplace conflict read
5/20: Expert welcomes mediation move in housing disputes read
5/15: The teen go-betweens read
4/30: CEDR: Expanding Mediation Worldwide read
4/22: Model Mediation Agreement and Procedure revised by CEDR read
4/18: UK: Leave mediation to its own devices read
4/12: N. Ireland: Pat Kenny to enter mediation with neighbour over disputed land read
read all
07/16/08
- Final Rules of Civilian Board of Contract Appeals Cover ADR
- Michigan Law Establishes Mediation of Property Tax Disputes
- Iowa Reactivates Flood Claim Mediation Program
- Compensation Under Consideration for Philadelphia Judges Pro Tem
- California Court Penalizes Lack of Mediation Attempt with Absent Party
- Alaska State Senator Proposes Mediation over Pipeline
more
07/21/08
- Even if They're Just Hoops to Jump Through ADR Clauses are Worth Getting Right
- Persuasion Through Appreciation
- Accessorizing for your next negotiation: should appearance matter?
- The Standing Conference of Mediation Advocates Podcast
- How to cure an allergic reaction to mediation marketing
- Yes! 50 Scientifically Proven Ways to Be Persuasive
- Mediator Geoff Sharp Up Close and Personal (with Vickie Pynchon tagging along)
read all
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CEDR's Annual Review 2006 is just out. 
