Here is a collection of articles about mediation and other ADR topics written by Consensus Mediation panel members and guest writers.
Please send us any articles you would like us to consider for inclusion here.
Lord Justice Ward:
"It is not enough ... that there had been some attempt in the correspondence between solicitors to settle the case. The opening bids in a mediation are likely to remain as belligerently far apart as they were in correspondence but no-one should underestimate the new dynamic that an experienced mediator brings to the round table. He has a canny knack of transforming the intractable into the possible. That is the art of good mediation and that is why mediation should not be spurned when it is offered."
Mediation - A Worthy Alternative by Maggie Kennedy
Confidentiality and Contractual Consideration in Mediation by Maggie Kennedy
Irish Judge Mr Justice Peter Kelly says mediation is on the rise but still underutilised
By Ruadhan Mac Cormaic in The Irish Times
If, 15 years ago, you had assembled a random group of litigation lawyers and asked each of them to speak for a minute on the topic of mediation, you would probably have been met with stony silence. “Or else,” said Mr Justice Peter Kelly at a recent seminar, “you would have met a chancer who was going to wing it.”
If you were to reassemble that group now, the judge continued, you would be shocked if you discovered amongst them somebody who didn’t know about mediation. Many of them would have taken a course to be accredited as mediators. And if somebody in the group admitted to knowing nothing about the topic, he would be advertising himself as a potential target for a professional negligence suit.
Few have been better placed to witness the rise of mediation in Irish business life, or its value as a means of resolving disputes, than Judge Kelly, who has presided over the Commercial Court since its creation in 2004. “People have become more accepting of the idea, and people have become enthusiastic about it,” he told the seminar hosted by the Irish Commercial Mediation Association (ICMA). “Nowadays it’s not regarded as a sign of weakness that one side would suggest mediation – it’s regarded as good common sense.”
What figures exist suggest mediation is a small but increasingly popular means of resolving commercial disputes. A survey carried out by the ICMA this month found there were 133 mediations in Ireland last year, compared to just 18 in 2003. Austin Kenny, the association’s chair, speculates the true figure could be closer to 250-300, but gauging the scale of a process that necessarily takes place below the public radar is difficult.
In Government, moves are afoot to establish the process on a statutory footing. The secretary general of the Department of Public Expenditure and Reform, Robert Watt, told the seminar the Civil Service was working to formalise mediation as a key component of its legal and dispute resolution system.
A mediation Bill being drafted will, according to Watt, make provision for a code of practice for mediators and introduce a statutory requirement for solicitors to inform their clients about the mediation option before beginning court proceedings. It will also provide for the courts to invite parties to consider mediation, including allowing for court proceedings to be adjourned for the period of mediation.
Such practices are already established in the rules of the Commercial Court, where proceedings can be adjourned for up to 28 days to allow parties to explore the option.
Mediation is no panacea. It doesn’t suit every type of dispute, and there will always be people who want their day in court. But the benefits of success are clear.
“It saves money, time and business relationships,” says Kenny. In the ICMA’s survey, 63 per cent of respondents said their clients were concerned about the cost of litigation. Some 43 per cent said their clients were worried about the time it would take for their case to wind its way through the courts.
“The costs are so much less,” said Judge Kelly, a self-professed fan. “The expenditure of time is so much less. The process is so flexible. It’s owned and run by the parties to it, and it can produce results which no court or no arbitrator can produce.”
While mediation is well established in certain types of cases, Judge Kelly suggested there were others, such as medical malpractice litigation, where it could be very useful.
In such cases, plaintiffs were very often seriously ill, and believed their illness was brought about as a result of malpractice by doctors or nurses who themselves were under extreme pressure. The media reportage of such cases was “very unfair”, the judge said, in that journalists tended to report on the early stages, where the plaintiff’s case was at its height, before losing interest.
“The case drags on for four, five or six weeks, and if the doctor is ultimately successful, it might get a column inch, but meanwhile his reputation is in tatters as a result of the reportage in the early part of the case. If the plaintiff loses, that’s devastation upon devastation . . . That is an area of litigation in which mediation can play a hugely important role.”
At the same seminar, the London-based mediator Michel Kallipetis QC made a barrister’s case for mediation. He argued the open session offered lawyers a terrific opportunity – not to hector the other side or convince their opposite number they have it wrong, but to “inculcate in the client who is paying for the litigation the possibility that you may have a better argument than his legal team are telling him.
“That’s all you need to start the process of trying to negotiate a settlement,” he said.
See the original article in The Irish Times
By Lee Jay Berman
Published in Advocate Magazine - see the full article on MediationTools.com
The biggest mistake most attorneys make is not getting all of the value that the mediator has to offer, and for which their client is paying. Many attorneys won’t let the mediator get a word in edgewise, tie their hands with respect to what they can reveal and discuss in the other room, and only want to talk numbers with them after lunchtime. Then they complain that the mediator is overpaid. Getting your money’s worth from your mediator is your job. You have to dig, prod and push to get everything that you can out of your mediator, not unlike a tube of toothpaste (that is, if you paid several thousand dollars for the toothpaste and only had eight or ten hours to get all that you could from it). Most attorneys never get to see all of the skills a mediator has because they never make the mediator work hard enough to need to for their mediator to utilize those skills.
Remember that experienced mediators have taken and even taught hundreds of hours of classes and workshops in negotiation strategy, and have facilitated hundreds or thousands of negotiations. Seasoned mediators have seen literally thousands of attorneys work their craft. That experience is what you are hiring when you select a mediator to help with your case. But it’s up to you to draw upon that talent and make that mediator work hard for you. Accept nothing less from them. Some mediators think that they can coast into their work with a semi-retired, carefree ease. Weed them out early. Expect to work hard to get your case settled, and expect your mediator to work harder. Here are 12 ways to make your mediator work harder for you. If you take advantage of every one of them, you will get much more out of your mediators, your mediations, and your settlements.
Read the full article on MediationTools.com - it's an excellent US site with a great deal of wisdom to share.
"Many scholars have noted that the business community would greatly benefit from third-party dispute resolution services. The problem is, there isn’t much demand for mediation or arbitration. If the alternative dispute resolution field has in fact built a better mousetrap, why isn’t the market buying it?
J. Maurits Barendrecht and Berend de Vries of the Faculty of Law at Tilburg University (Tilburg, the Netherlands) explain this inconsistency in terms of imperfections in disputants’ decisions that keep disputants from rationally dealing with their conflict.
The authors note that disputants use arbitration and mediation less frequently than their preferences on surveys would predict and than rational parties would. Barendrecht and De Vries also argue that the default option for dispute resolution is “sticky.” In other words, whatever method is promoted in the parties’ contract, whether implicitly or explicitly, will attract the majority of disputes.
The authors attribute this “stickiness” in part to the goodwill that typically exists between parties that have reached agreement. When they draw up their contract, friendly parties fail to seriously consider the possibility of a dispute arising. Without such consideration, the courts end up as the default mechanism for disputes.
Even if one side proposes an alternative dispute resolution mechanism, the other side is likely to devalue the offer. In addition, parties are likely to prefer a known, inefficient system – the courts- over a less known, more efficient system such as mediation or arbitration.
What can be done? First, management should replace lawsuits as the default option for a dispute with mediation, followed by arbitration. In addition, anyone who signs a contract should be aware of the natural tendency to underestimate the likelihood of a dispute. When this occurs, the logic of efficient dispute resolution is likely to prevail.
See what else Harvard Law School thinks ...