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In the absence of prior agreement by the parties on how mediation costs were to be handled, U.K.’s Technology and Construction Court (TCC) concluded that a party who refused to appear at a mandatory mediation should bear the costs from late cancellation. The court found insufficient the party’s explanation about the futility of mediation in the absence of another entity.
Commercial Litigation Wire (July 2009)
Following one death and hundreds of complaints about police conduct in controlling demonstrators at the April G20 summit in London, a parliamentary inquiry by the Joint Committee on Human Rights proposed that independent mediators be used. The Committee report blamed both police and demonstrators for failing to communicate prior to the protests, leading to excessive violence, and noted that improved communication and dispute resolution may be achieved through mediation between the police and protesters in the future.
The Alzheimer Society of Ireland launched a pilot elder mediation program to assist families coping with dementia. Family members are often involved and affected by a relative with dementia and the new model of elder mediation services may help address the resulting stress and family conflict.
Irish Medical Times (June 22, 2009)
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)
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)
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)
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
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)
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)
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)
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)
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)
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
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)
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.
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)
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10/30: The BBC interviewed Clive Lewis to gain an insight into key tactics used in Mediation read 10/15: English Professional Soccer League launches contractual stability and dispute mediation conference read 10/13: UK surveyors mediation service will save time and money read 9/29: United Kingdom: Advancing ADR In Personal Injury Claims read 7/08: Ireland: Troubled businesses urged to access new mediation service read 7/08: United Kingdom: Mediator To Give Evidence On Mediation read 7/06: Legal Aid Minister promotes "on the spot" family mediation pilot read 6/29: Irish Times: Mediation in debt management read 6/09: Ireland: Minister to launch mediation service for families of elderly people with dementia read 5/06: Insurer Beazley Says Its Support for Mediation Body Underlines a Growing Trend read read all Keith Seat's |
