Transcript Mediation

Third National Conference
London – 14th May 2009
Safety and Admin
 Tracey Stewart
Registrar
Civil Mediation Council
Safety
 Fire
 Exits now indicated
 Assembly point
 Smoking – wholly forbidden throughout the Hall
 First Aid
 Available through the registration desk
 Emergencies
 Contact point
 Alarm
Admin
 Food arrangements
 Special needs – please tell us by 1030
 CPD
 Bar Council Registration Forms
 CMC Registration sign-in sheets at reception
 Reception tonight – 1700 to 1800
 Mobile telephones – switched off please
 Photography – with consent of the subjects
Chairman’s Welcome
 Sir Henry Brooke
Chairman
Civil Mediation Council
Welcome and thanks
 Guests and speakers
 Lord Judge
 Machteld Pel
 Professor Genn
 Professor Roberts
 Conference organiser and helpers
 Judith Kelbie and others
 Admin team today
 Tracey Stewart and her assistants
Our late President
In memoriam
The Right Honourable Gordon Slynn,
Baron Slynn of Hadley
(17th February 1930 – 7th April 2009)
Opening Address
 The Lord Chief Justice, Lord Judge
CMC Activities 2008/2009
 Richard Schiffer
Mediator – ADR Group
CMC Board Member, 2003 to date
Elections 2009
 Five new Board members
 MoJ and BERR represented
 CBI
 Recruitment of non-Board members for committees
 First time – work place representative
 Strong non-lawyer representation reflecting
membership
Forums and Meetings
 Planning and Environment
 International Trade
 AGM
 EGM
 Presentation to judges and court staff
 Meetings of regional groups – most recently ASWM
Workplace developments
 Employment Act
 cmcregistered.org
 Integration of workplace organisations
 Wider outreach
Consultation Process
 Registration
 Codes of Practice
 Complaints Scheme
 Mediation Protocol
 Accreditation
 Training – Professor Roberts
Lobbying and promoting
 Government
 BERR
 Ministry of Justice
 Judiciary
 HMCS
 AJTC
 Consumers
 CJC
 Users
 Wider groups, businesses and organisations
Introduced by
Sir Henry Brooke
Chairman, Civil Mediation Council
Netherlands court-connected
mediation office
Machteld Pel
Making mediation happen
Inside and outside the courts
A Judge’s Perspective
Netherlands court-connected
mediation
Topics
Why would judges refer?
Why would laywers advise?
Why would parties choose?
What drives our policy makers?
Impact on use of mediation in society?
Netherlands court-connected
mediation
Resolving or deciding disputes or conflicts
• Sources of conflicts
• Sources of disputes
• Needs of the parties?
• Needs of the laywers?
• Needs of the judges?
Netherlands court-connected
mediation
Conflict diagnosis
before supplying the medicine
Sources of conflict
• Miscommunication
• Lack of respect and recognition
• Clash of egos
• Lack of time
• Uncertainty by insufficient control
Netherlands court-connected mediation
Conflict issues
• Conflicts of interests on scarce resources
• Operational conflicts
• Vision of value conflicts
• Identity or relational conflicts
• Metaconflicts
Cultural turning point for judges and lawyers
and professional parties
 Decision
 Settlement
 Mediation
- dispute
- dispute/conflict
- conflict
Effectiveness of profession
“do judges talk to people?”
Netherlands court-connected
mediation
Netherlands court-connected
mediation
Change of culture lawyers, judges, advisors?
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Intervener centred
Client centred
Sign of weakness
Sign of strength
Relationship in commercial disputes
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Education
Development conflict diagnosis
Training courses
Monitoring
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Policy: disputes – underlying problems
Netherlands court-connected
mediation
Choice drivers and interests
 Laywers: crucial role
 Parties: interests, rights or power?
 Judges: gate keepers
Interests:
 Own
 Presumed
 Prescribed
Netherlands court-connected
mediation
Choice drivers and success indicators
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Control process/outcome
Decision no final solution
Relationship
Compliance and satisfaction
Rapid and cost effective solution
Netherlands court-connected
mediation
Success factors
Support + Education
Quality referral
 fast
 information
 matching
Quality mediation
Netherlands court-connected
mediation
 Practical lessons for effective referral
 organisation
 Methods + skills
• oral
• written
• selftest
 mediation officer
• information
• organisation
• professional spider in web
Netherlands court-connected
mediation
Quality mediations
Objective quality measures
Participation conditions
Organisation and control
Confidentiality, tasks for:
 lawyer
 judge
 legislator
Netherlands court-connected
mediation
Netherlands court-connected
mediation
Court-connected mediation agency (1)
In general
 monitoring
 implementation guide
 manual for referring judges
 education
 advice Council for the Judiciary
Netherlands court-connected
mediation
Court-connected mediation agency (2)
Policy development
Best practices
Information and communication
 library
 website
 newsletter
 Videos / dvds
Netherlands court-connected
mediation
Court-connected mediation agency (3)
 All courts:
 helpdesk
 guidance and advice
 select methods and timing
 communication and information
 training and education
 organisation as needed and as fits
 monitoring and feedback
 General structure and uniformity in organisation
 Monitoring
Netherlands court-connected
mediation
Results in figures
Success percentage mediations
2001
2002
2003
2004
2005
2006
2007
2008
Yes/partly
53
63
60
67
54
58
61
60
No
47
37
40
33
46
42
39
40
Médiation judiciaire aux Pays Bas
Research
 specific research
 monitoring
 pilot projects
Netherlands court-connected
mediation
Change and resistance
Professional pride
Conflicts and changes
Conflict culture
Practice what you preach
Netherlands court-connected
mediation
Netherlands court-connected
mediation
 WEBSITE
 WWW.MEDIATIONNAASTRECHTSPRAAK.NL
 ENGLISH INFORMATION ON COURT-CONNECTED MEDIATION
IN THE NETHERLANDS
 Monitoring forms
 Literature
 Self-test
Netherlands court-connected
mediation
CONFERENCE
MOVING MEDIATION
19 november 2009
The Hague
Netherlands court-connected
mediation
Discussion
Moderated by Sir Henry Brooke
Coffee
Please return
by 1105
Karl Mackie
QUALITY IN MEDIATION
Quality in Mediation
 Professor Hazel Genn “What is good mediation?”
 Professor Simon Roberts “What makes a mediator?”
 John Sturrock “A Scottish Perspective”
 Debate
What is Good Mediation?
 Professor Hazel Genn
Discussion
Moderated by Karl Mackie
What makes a good
mediation?
Alternatively:
What makes a mediation bad?
Professor Dame Hazel Genn
Faculty of Laws, UCL
From whose perspective?
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•
•
•
Parties?
Lawyers?
Mediator?
Broader social interest?
What contributes to a good mediation
from perspective of disputing parties
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Voluntariness
Expectation management
Preparation/advice
Participation/voice
Respect for mediator
– Knowledge of subject matter/feel for law
– Good mediation skills
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•
•
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Willingness of opponent to settle
Getting a settlement
Sense of fairness of process and outcome
Control of power imbalances?
“The mediator was particular good and he’d made contact
with the parties in advance of the mediation and that was
extremely helpful because obviously under the scheme
there’s only a limited amount of time…Making contact
early, getting to the issues seeing what people wanted to
achieve. He didn’t waste a lot of time with lengthy
opening sessions with people saying this and other
people saying that. It was good. His shuttle diplomacy
worked well.” (Claimant rep, personal injury)
Lawyer’s Perspective
•
•
•
•
•
Expectations/understanding
Respect for mediator
Preparation
Even handedness of mediator
Opportunity to review case and hear
alternative perspective
• Happy client
• Settlement
Need for mediator to have legal skills?
I would mediate again, but only if the mediator was a
very experienced lawyer or barrister or judge who
could give guidance on legal/contractual matters, and
also the likely outcome in court. .. We and the
defendant were further apart at the end of the
mediation than before.
[Claimant debt case]
This was an unfortunate situation where the claimant
did not understand the law and the mediator could not
advise/express an opinion. I have no idea how the
mediator dealt with the claimant during their meetings,
but I feel he allowed the claimant to continue to be
unrealistic. (Defendant rep, damages for breach of
contract for £80,000)
What makes a bad mediation?
• Pressure to mediate
• Mismatch between parties and
mediator/expectations
• Good mediator doing something
different than what parties want
• Bad mediator
• Panicked mediator
• Imbalance in power/negotiating skills
• Party leaving feeling pressured to
settle
Not willing to settle
Mediation does not work if the parties are
not willing to give some ground. No one was
prepared to budge…It was ordered by the
court. The other side just seemed to use it
to try and keep fighting the litigation.
(Claimant rep. Family dispute over family
business. Increased costs by about £25003000 and increased time)
We recommended mediation (to our clients) to avoid an
adverse costs order. There was only a remote possibility of
settlement. The Court should not push parties to mediate.
It is an expensive process, but there should be a positive
duty on legal advisers to have considered it. It is a good
tool for parties that are sensible and genuinely want to end
litigation. (Claimant’s rep, claim for professional fees)
Poor mediator
The efforts of the mediator were well intended,
but his lack of legal knowledge on this subject left
him unable to discuss the subject in an informed
manner, with the other party. This resulted in the
mediator asking my solicitor to advise the other
party on the subject. This advice they ignored and
refused at the meeting to offer any settlements or
agree to mine. As a result the mediator decided to
abandon the meeting early as the other party was
unwilling to negotiate.
(Defendant unsettled boundary dispute)
Poor mediator
In this case the mediator left us alone and
waiting for most of the three hours with little
happening. No real negotiation was even
started until the last half hour when undue
pressure was put on both parties by the
mediator, who became agitated and rude.
(Def rep)
Broader social interest
What makes good mediation?
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•
•
•
•
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Settlements that reflect merits?
Settlements that resolve the conflict?
Party satisfaction?
Peace?
Justice?
Perceptions of fairness of outcome
Settled but unfair
The process felt pressurised, due to time and the
mediator. My sense of it is that I have managed to
keep my home (Thank God) but I have lost
£18,500 total in legal costs – of which I will get
back £3,500. I will have to pay for the legal costs
towards the transfer of the property even though I
have nothing to gain from the process.” (Claimant
property dispute settled)
I felt the mediator was very much pushing for me to settle
when I was not entirely convinced. She would say they are
ready to settle – which to me implied I was less ready – also
when she went to the other room I could hear laughter.
(Claimant property dispute, settled)
His main target appeared to be to reach mediation between the
parties disregarding which party is right, which party is wrong. I
wish he would be on the side of the right party. (Claimant)
I thought that at times he was pushing me to accept a deal
which wasn’t fair to me because he possibly sensed that I
would rather settle the matter there than drag it out further
through the Courts. (Claimant property dispute)
He just seemed to be interested in brokering a deal, rather
than assessing who was in the right. (Claimant)
Critical features
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•
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Willingness to enter process
Willingness to shift ground
Respect for mediator
Valuing process
Perceptions of fairness of process
and outcome
What makes a mediator?
 Professor Simon Roberts
Discussion
Moderated by Karl Mackie
A Scottish Perspective
 John Sturrock
Core Mediation
Discussion
Moderated by Karl Mackie
Debate on Quality
 Open session
Moderated by Karl Mackie
Lunch
Please return
by 1400
Please complete the
questionnaire and
CPD registers…
Paul Randolph
THE WORKPLACE REVOLUTION
Afternoon session
 Keith Mizon: ACAS “What Revolution?”
 John Usher: Unite the Union “The Union Perspective”
 Panel Discussion and delegate questions
The Workplace Revolution
- what revolution?
Keith Mizon
Director, Individual Dispute Resolution
Advisory, Conciliation and Arbitration
Service (Acas)
The Workplace Revolution
- what revolution?
Third party assistance nothing new in
employment and workplace disputes
• 1860 Nottingham Hosiery Board
• 1867 “Councils of Conciliation” Act
• 1869 North of England Iron and Steel Board
• 1896 Conciliation Act
• Acas assistance in individual (and collective)
disputes since 1970s
The Workplace Revolution
- what revolution?
2004 reforms
• Aimed to resolve more disputes in the
workplace and reduce ET claims and Hearings
• Statutory disciplinary and grievance
procedures
• Fixed periods for Acas conciliation
The Workplace Revolution
- what revolution?
2007 Gibbons Report
• “unintended negative consequences (of the
2004 regulations outweighed) their benefits”
• Formalisation too early
• One size does not fit all
• Challenged the social partners to implement
and promote early dispute resolution through
greater use of mediation (and other ADR
approaches)
The Workplace Revolution
- what revolution?
2007 Gibbons Report
• “Actively assist employers and employees
resolve disputes that have not been resolved
in the workplace”
• Increase the quality of advice to potential
disputants
• Abolish fixed conciliation periods
• Offer a free early pre-claim dispute
resolution service
The Workplace Revolution
- what revolution?
Employment Act 2008
• Abolished statutory procedures and fixed
conciliation periods
• Provided for a revised Acas Code of Practice
and a more purposeful, more rounded, less
nit-picking approach to determination of
claims
• Potential +/- 25% adjustment of ET awards
• More resources for statutory early conciliation
• A missed opportunity?
The Workplace Revolution
- what revolution?
Obstacles to greater use of early (nonstatutory) conciliation/mediation
• Lack of a list of registered/accredited
providers
• Legitimate concerns around:
• usurpation of established roles and
prerogatives
• access to justice
• The extent to which employers have been
convinced of the business case for mediation
Moderated by Paul Randolph
 From
the Conciliation Act 1896 to the
Employment Act 2008
 Over 100 years ago, the Board of
Trade, at the party’s request was
given statutory power to appoint
conciliators in its discretion in respect
of any difference between the parties
“existing or apprehended”.
 “Mediation
differs from conciliation in
that a mediator may make positive
recommendations” Industrial Problems
and Disputes by Lord Askwith in 1920

“The IROs and today’s ACAS
conciliators have found in common
that conciliation is the better
technique.” (Lord Wedderburn)
 The
2008 Act Bill “will reform the
mechanisms for dispute resolution by
repealing the statutory workplace
dispute resolution procedures and
replacing them with a package of
non-legislative measures to help
employers and employees resolve
disputes earlier.”
Minister for Employment Relations, Mr. Pat McFadden
 Will
trade unions resist in the face
of the threat that early mediation
poses to their role and their ability
to help their members, or
 will
they take the opportunity to
help their members resolve
disputes
at
work
to
their
advantage?
 Unions
fight disputes, including cases
to tribunals and elsewhere, to
establish their credibility and to grow
membership.
 Adversarial
procedures
work
alongside the organisational model
that allows unions to pick fights and
win.
 However,
there is no doubt that
the tribunal system often does not
provide effective remedies for
workers in a dispute and
mediation may do that.
 Unions
play.
will certainly have a part to
 Unfair
dismissal, reinstatement and reengagement: The figures for 2007/8
show there were 40,941 unfair dismissal
claims of which 8,312 proceeded to
hearing. Of these 3,791 were successful
but only 8 resulted in re-instatement or
re-engagement.
 The
2008 Act
 A human rights issue – European
Social Charter
 Stress
and bullying
 Discrimination
 And
the ongoing relationship
 Stress
and the Unison protocol
 ET cases
 And equal pay cases and the
unitary remedy...
 Collective disputes
 But
who will pay for mediation?
 Who
 in
will participate?
Acas we trust...who else?
 The
employers’ HR department?
 The
case for regulation

Representation and the right to be
accompanied

“The mediator shall conduct the
proceedings in an appropriate manner
taking into account the circumstances
of the case, including possible power
imbalances...” European Code of
Conduct for Mediators

“These are seasoned negotiators, happy
to sit out the debate for as long as it
takes to get the right result. Even if the
trade unionist represents only his own
individual case the Mediation can be
suffocatingly and distractingly crowded
by the invisible presence of the future
brothers and sisters who could suffer
equal injustice if the ‘proper’ result is not
reached.” (Jane Andrewartha)
and delegate questions…
Lesley Allport, Clive Lewis, Zanne Findlay, Dr Geoff Lawday,
Keith Mizon, and John Usher with Paul Randolph
Tea
Please return
by 1545
Sir Henry Brooke
THE CMC’S ROLE IN 2010
The CMC should regulate
 Lola Bello
Consumer Focus
Moderated by Sir Henry Brooke
The CMC should promote
 Jonathan Dingle
CMC Hon. Secretary
Open Microphone – any topic
Please give your name and (if appropriate) your organisation
Summary and Closing
 Sir Henry Brooke
Please complete conference feedback forms –
including preferences for location in 2010…
Reception
1700 to 1800
Please CPD register