Transcript The Lawyer’s Role in ADR Part 2

23 January 2013
Mediation: Models and Practise
Moldova
Ranse Howell
Ranse Howell, JD, LLM, MSW
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Joined CEDR in 2006 designed, developed and delivered mediation and conflict management
programmes for both private and public sector clients in the UK, Europe and Asia. Designed
the CEDR Certificate in Advanced Negotiation, which is a seven-day reflective learning course,
designed to develop and enhance the participants approach to negotiation.
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Publications - Emotional Intelligence and Projects, N. Clarke and R. Howell, PMI Press, 2010,
“Two to Tango”, Venturing Beyond the Classroom, 2010; “Railway Strategy Comes at a Price”,
Railway Strategies, September 2009; “Prepared for Conflict”, The Growing Business Handbook,
Kogan Press 2009; “We Came, We Trained”, Rethinking Negotiation Teaching, DRI Press, 2009.
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Lecturer on Mediation and enhanced ADR processes at Pepperdine University (London), City
University of New York (School of Law), Canterbury Christ Church (Law Department), University
of Southampton (School of Business) University of Birmingham and Cardiff University.
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CEDR accredited mediator and has mediated numerous commercial cases (including
construction, contract, employment and tenancy) in the US and UK.
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Legal training Juris Doctor (JD) from the City of New York School of Law and worked in a
boutique law firm in New York City. Master of Law (LLM - International Dispute Resolution)
from the Straus Institute at Pepperdine University, Malibu. Master of Social Work (MSW) from
Temple University, Philadelphia, USA, and is a trained counsellor. Bachelor of Fine Art (BFA)
from Temple University, Philadelphia, USA.
Centre for Effective Dispute Resolution (CEDR)
• Largest dispute resolution provider in Europe (training and
dispute services)
• Founded in 1990 (with member support from Law Firms and
CBI)
• CEDR Foundation - Not for profit
• CEDR Services – Commercial Training/Consultancy
• CEDR Solve – Commercial Dispute Resolution Provider
• CEDR Conflict Innovation and Resource Unit
• Supported by members
• Legal and professional bodies
• Corporate organizations
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A chronology of development of ADR in
England & Wales
1990
CEDR Established
1996
CLCC pilot
1998
Court of appeal scheme
1999
Civil Procedure Rules introduced
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Overriding objective
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Active case management
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Cost sanctions
2001
Lord Chancellor’s ‘pledge’
2003
CMC established
2004
DCA announces plans for the future
2005
41st amendment to the PAPs
2005
National Mediation Helpline
2005/6 National Mediation Weeks
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CEDR Offices – UK, China, Qatar and
Ireland
CEDR Solve - Dispute resolution spectrum
Binding
Imposed decision
• Expert determination
• Adjudication
• Arbitration
Non -Binding
Case appraisal
Structured negotiation
• Early neutral
evaluation
• Mediation”
•Judicial appraisal
• Stakeholder
dialogue/consensus
building
•Complaints handling
• Conciliation
•Facilitation
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Dispute resolution spectrum
Negotiation
Mediation
Informal
Client-driven
Forward-looking
Wide range of outcomes
Litigation
Arbitration
Formal
Judges and rules
Backward-looking
Win / lose
Alternative Dispute
Resolution
What is ADR?
• Any process involving the use of a third party neutral
as an alternative to litigation
• Dispute resolution processes have existed informally in most
cultures for centuries. Now being formalised into
contemporary Civil Justice systems
• Can be used in addition to or alongside litigation (or
arbitration) proceedings as well as an alternative.
Mediation Definition
Mediation is a flexible process conducted confidentially in
which a neutral person actively assists parties in working
towards a negotiated agreement of a dispute or difference,
with the parties in ultimate control of the decision to settle
and the terms of settlement
Mediation Definition
Mediation is a flexible process conducted confidentially in
which a neutral person actively assists parties in working
towards a negotiated agreement of a dispute or difference,
with the parties in ultimate control of the decision to settle
and the terms of settlement
Civil Mediation Council
• Our Mission: To inspire all sectors of society to use
mediation when managing and resolving disputes
• Aims:
• EXCELLENCE
• promote the highest standards of skill, conduct and
integrity in mediation
• enable access to high quality mediation services
• INNOVATION & GROWTH
• INFORMED DEBATE
• OPENNESS & INCLUSION
Civil Mediation Council (UK)
For a body to be accredited:
•Training – 40 hours, 50% role play with 50% of these
supervised. Trainees must be assessed (using different
trainers)
•Must have a separate code of conduct
•Complaints and feedback process
•New mediators must have access to supervision and
mentoring (must have observed at least two mediations
before being appointed as lead)
•CPD
•Must have insurance of not less than £1,000,000
•Should have appropriate administration
•There has to be a panel of at least six mediators
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Mediation Training provider – CEDR example
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All trainees must complete the pre-course reading (16
hours)
All trainees must complete the 40 hour course
The accreditation of mediators is based on a cumulative
score based on a competency framework
•Relationship
•Process
•Content
Trainees must complete a post-course assignment:
Settlement agreement
•Self reflection – strengths and weaknesses
•Post course action plan
It is possible to be reassessed for those participants who
were unsuccessful
Once an individual has passed they are recognised as a
CEDR accredited mediator
Relationship competency – CEDR example
Relationship skills
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Creates an environment conducive to
mediation
2.
Develops communication and
interaction with each individual
participant
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establishes rapport quickly with the parties
and others present
encourages parties to talk and to express
what matters to them by using open questions
and other communication skills
listens attentively, prompts, paraphrases, and
reflects back
demonstrates understanding of each party’s
situation, their perspective and their
feelings about it
uses silence positively, and maintains good
balance of airtime between mediator and
participants
recognises, respects and responds to
expressions of emotion
allows parties to express emotion in order to
enable progress
uses awareness of body language, own and
others, to enhance communication
acknowledges the significance to parties of
problems and issues
uses touches of humour effectively
frames, reframes and uses language flexibly
so as to influence participants positively
Sets the scene and sets the tone
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conveys energy, enthusiasm and personal warmth
appears relaxed, alert and confident with the
process
makes good use of the physical environment
attends to participants’ comfort and needs
motivates parties and representatives to
participate
Builds confidence and trust
establishes the mediator’s authority
communicates in an assured, open manner,
verbally and non-verbally
demonstrates neutrality through equal treatment
of the parties and use of non-judgmental language
has prepared well and appears well-prepared
recognises issues of discrimination, equality and
diversity and manages any perceived power
imbalance
defuses unhelpful tension and harnesses
constructive tension
is sensitive to team dynamics and manages intrateam relationships
adapts to different individual and corporate
cultures
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Phases of a mediation
Preparation
Opening
Exploration
Bargaining
Concluding
Roles during preparation
Mediator
• Pre-mediation administration and contact
• Finalising mediation agreement
Lawyer
• Reviews legal case
• Prepares mediation documentation
• Prepares client and self
Client
• Considers ECA
• Identifies BATNA
• Prepares self for active participation in the mediation
Roles during opening
Mediator
• Explains ground rules and process
• Sets the tone
• Encourages participation
Lawyer
• Presents opening (to extent agreed with client)
• Acknowledges valid points made by other parties
• Listens actively
Client
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Acknowledges authority
Confirms understanding of mediation agreement terms
Makes opening (to extent agreed with lawyer)
Vents, “clears the air”, gives explanations and has
“day in court”
Roles during exploration
Mediator
• Builds relationship, trust and rapport with parties and lawyers
• Asks open questions to identify needs/interests
• Generates ideas – “expands the pie”
Lawyer
• Brainstorms options
• Shows creativity – lateral thinking – problem solving
• Identifies any legal or commercial issues with proposals
Client
• Identifies needs/interests
• Generates options
• Assesses workability of proposals
Roles during bargaining
Mediator
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Reality testing
Framing and reframing - manages expectations
Identifies objective criteria
Uses strategies to break impasse
Lawyer
• Realistic assessment of strengths and weaknesses of the case
• Reviews BATNA
• Re-assesses costs
Client
• Adjusts expectations
• Makes and reviews offers
• Yields to reason – open to other side’s reasoned points
Roles during conclusion
Mediator
• Identifies areas of agreement
• Assists the lawyers to draft settlement terms
• Assists the parties to agree a process going forward in case of
no agreement
Lawyer
• Advises client on pros and cons of proposed settlement
• Drafts settlement agreement
• Advises client on process going forward in case of no
agreement
Client
• Assesses lawyer’s advice on settlement proposals
• Seeks to ensure that settlement will be endurable and takes
into account causes of dispute
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Types of mediation programme
Traditional court Model
Types of Court Mediation Programmes
Two types
• Court- Referred
• Court Connected (Annexed)
Overview of Court-Referred Mediation
• ADR Centres may be linked to the court system but is
not part of it.
“Cases are either referred by the appropriate courts or
from out of the courts. Agreements arising out of the
court-connected mediation are usually enforceable as
court orders.” (IFC, ADR Manual (2006))
• When the courts have identified a dispute suitable it
refers it to an ADR Centre of Mediation Officer to make
arrangements to conduct mediation.
Overview of Court-Referred Mediation
Overview of Court-Annexed Mediation
• In Court-Annexed mediation, this type of ADR is provided
by the court as part of the same judicial system.
“ADR programmes or practices authorised and used
within the court system and controlled by the
Court. Case are referred to mediation by the
Courts only. Often judges serve as mediators.”
(IFC, 2006)
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When the courts have identified a dispute suitable it refers it
to a Court Mediation Officer to make arrangements to conduct
mediation.
Overview of Court-Annexed Mediation
Litigants
Court
CourtAnnexed ADR
Centre
Mediation
Arbitration
Resolution
Med- Arb
ENE
Expert
Determination
Overview of Court-Annexed Mediation
Litigants
Dispute
Management
Advisory
Panel
ADR
Centre
Dispute
Resolved
Unsuccessful
Courts
Getting Cases to Mediation
Overview of Court-Based Mediation Programmes
Voluntary Mediation
• Traditionally most court-annexed programmes are voluntary.
• In a voluntary system, judge would offer the parties the
possibility of resolving the dispute through mediation or
another model.
Mandatory Mediation
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Mandatory mediation is mandatory in terms of entry into the
process but not in terms requiring a resolution to the dispute,
as mediator cannot force the parties to a resolution.
Settlement rates of both systems are largely similar but
studies vary.
Getting the Cases to Mediation –
Types of Cases
• When should mediation be considered?
 Cost of litigation vs. amount in claim
 Little to gain from further discovery
 Parties are in deadlock
 Multi-actions involving common parties
 Sensitive issues / evidence
 Concern over credibility of witnesses
 Parties do not want publicity
 Control of outcome of dispute
 Benefits of mediation process
 Creative non-monetary outcomes might be
negotiated
Getting the Cases to Mediation - Types of
Cases
• When should mediation not be considered?
 When legal, commercial or other precedent needs
to be set
 Summary judgement is available fast and efficiently
 Parties requiring emergency injunctive or other
protective relief
 Where publicity is sought
Getting the Cases to Mediation –
Screening Cases
• Where does screening occur:
 Automatic referral if an agreed category of disputewith opt out by parties
 Screened by court staff/registrar prior to allocation
to judge.
 Screened by Judge at preliminary stage of litigation
process.
 Specialised case track management unit
established to allocate to litigation of mediation.
Getting the Cases to Mediation – Referring
cases
• Roles of Judges and Court Registrars:
 Selecting appropriate cases for mediation
 Explaining mediation and its benefits to parties
 Using court rules to encourage referral to mediation
 Enforcing the settlement agreement
Getting the Cases to Mediation – Referral
mechanism
• Pre- trial -Invitation to Attend Mediation
 When the Court has identified a dispute suitable for
mediation it should send a letter to the parties inviting
them to participateQuestion: Courts staff or mediation centre?
• During-Trial
 If a willingness from the parties to use mediation, during
hearings then judge could refer case to mediation.
• Logistical Arrangements and Notice of Set Down
 Once a dispute has been recommended for mediation,
the Court arrange a stay on proceedings.
Encouraging Parties to mediateIncentives and Sanctions
Incentives for the parties:
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Return of the court fees
Stays of proceedings
Preference for setting down for trial if no settlement
Others?
Incentives for Judges:
• Extra recognition for cases referred to mediation by a
judge in disposal statistics
Sanctions
• Adverse costs orders ( Civil Procedure Rules of England
and Wales)
• Others?
ADR orders
The Civil Procedure Rules 1999
Part 26 – Rule 26.4(2)
“Where
• all parties request a stay…….or
• the Court, of its own initiative, considers that such a
stay would be appropriate, ……..the Court will direct
that the proceedings be stayed for one month [to allow
ADR to take place]”
ADR orders: the Commercial Court and beyond
• Now made in any Court
• Parties required to exchange lists of mediators by Week 1
• Parties shall in good faith endeavour to agree by Week 2
• Failing this, the Court will assist at a hearing on Week 3
• By Week 4, the parties shall take such serious steps as
they may be advised to resolve their dispute
• If not settled, parties must report to Court
Administration of a Mediation
Programme
Administration of the Programme – Who?
Broadly two options:
1. Existing Court staff dealing with all cases
2. Separate staff within a court-annexed centre
Administration of the Programme
Administration of the Programme
Pre-mediation –
• Creation of case record (if necessary)
• Invitation letter to parties with mediation brochure
• If a willingness to use mediation set up mediation including:
 Check terms of mediation agreement and signed.
 Advice on preparation of briefing materials for the
mediator.
 Coordinate submission of briefing materials for
mediator.
 Coordinate times of mediation, date and mediator
appointed
Administration of the Programme – PreMediation Actions
Who should the mediator be?
• Should be formally trained as mediator
• Judges
• Lawyers and other professionals
• Criteria to be on the mediators list at the court
Administration of the Programme
The Mediation Day- Considerations
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Length of Mediation
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Number of sessions allowed
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Time allowed from agreement to mediate to settlement
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Facilities required
Administration of the Programme
Settlement Enforcement and Non-settlement Reports
SETTLEMENT
• Pro-forma settlement agreement completed
• Consent decree if necessary – how best is this done?
NON-SETTLEMENT
• Dispute should be referred back to litigation and the stay
on proceedings lifted.
 To whom?
 How?
Administration of the Programme
What are the obstacles to developing court
annexed mediation in Moldova?
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Legal
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Stakeholders
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Practical
Facts, figures and examples
• 81% of mediating parties came to the
mediation by mutual consent, rather than
through court intervention
• 94% of mediations last just one day
• 80% of mediation referrals dealt with within
three weeks
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What do they mediate (2007-2012)?
Supply of goods / services
22%
Finance
15%
Professional negligence
14%
Construction
9%
Employment
7%
Property
7%
High Tech
6%
Partnership
5%
IP
4%
Insurance
4%
Injury
4%
Maritime
2%
Other
2%
Recent research data
Recent research data
43% saved over £100,000
Final thoughts…
• ADR can provide a solution but it is not the only option
• Those jurisdictions that want to let mediation develop
have got to be prepared to trust the process and allow
the field to develop
• Possible to partner with stakeholders who will
use/implement mediation services within their own
organisation
• Have a business approach to ADR without losing sight of
the overall goal
• Mediation is not a substitute for structural issues/
blockages
Ranse Howell
[email protected]
+44 (0) 207 536 6009
www.cedr.com