As we move into these interesting economic times, the former Lord Chancellor, Lord Falconer, has predicted an explosion of ‘mega-litigation’ in the aftermath of the collapse of Lehman Brothers. Delivering the keynote speech at the Legal Week Litigation Forum in London, Falconer said the demise of the US’s fourth-largest investment bank would be a turning point for credit crunch-related litigation, unlocking a flood of cases.

“There is going to be litigation on a scale that we have not seen before,” he told the conference, predicting the emergence of “a new era” for litigation and dispute resolution.

Now with respect to this new era of dispute resolution, lawyers and their clients will be forced to consider mediation  beacuse quite simply they cannot afford other options. And let us remember mediation works in such a high % of cases, cuts out legal costs and offers more commercial solutions.  It is something some lawyers will resist due to impact on fees but ultimately they will not have any choice. Please see details of training we offer on this.

"While Oregon's economy limps along, trying to pull itself out of three years of slow growth and high unemployment, litigation lawyers remain in high demand.

Reflecting a national trend, area law firms both large and small report that their need for litigators has risen in recent years. Schwabe Williamson & Wyatt, Portland's second-largest law firm, hired nine litigation lawyers in 2003 and has hired six so far this year.

Jim Finn, chair of Schwabe's litigation department says, "We have well over 50 litigators here. We have been very busy in the last three or four years, with lots and lots of different kinds of work."

Finn reports that all of the different groups in his department have seen an increase in work, including product liability, employment, construction and commercial litigation.

Schwabe also represents the Archdiocese of Portland, which has been involved in a huge amount of litigation and has now moved into bankruptcy court, generating "an awful lot of work" for the firm.

Finn, who has been in litigation for 25 years, expects business to remain pretty steady.

"In litigation, there seems to be less peaks and valleys ... there are certain areas [in law practices] that wax and wane," Finn says, but litigation isn't one of them. When the economy improves, Finn anticipates increased work for lawyers, and therefore demand for lawyers, in the areas of intellectual property, construction and real estate transactions. "

As we head into recession in the UK it is noteworthy we will be dealing with more disputes so certain kinds of lawyers such as insolvency, commercial and employment  litigation can be looking forward to more work.

Those who work in other areas may struggle.

This research highlighted a real lack of familiarity with the practice of mediation – in fact only 7% of managers interviewed have used mediation and whilst a further 56% had heard of it the fact they had never used it meant their knowledge of it’s benefits was limited to say the least.

Such a shame when mediation can be a much more cost effective way of handling disputes than resorting to the Courts.  It was even more worrying to learn from the research that around two thirds of managers think mediation should only be used as a last resort, that respondents tended to think of it is an expensive way to resolve disputes and one only suited to large organizations.  We mediators clearly have an awful lot to do to educate this particular sector of the market.

In an attempt to encourage SMEs to try mediation for the first time I've started to offer a free half hour telephone mediation assessment to establish whether a dispute is suitable for mediation and provide an estimate of the cost.  I'd hope to be able to convince some managers of the benefits of mediation - at no risk to their business.

The research was conducted by GFK NOP on behalf of ACAS and involved telephone interviews with managers in 500 Small and Medium Enterprises.   It is part of a wider research programme being carried out jointly by Acas and the Chartered Institute of Personnel and Development on the use of mediation.

My view is that people at work have become increasingly process-driven and have lost the confidence to deal with things on their own.

Mediation is becoming increasingly popular because, unlike arbitration where an expert third party makes a judgement on a situation, the process is about two parties coming to an agreement with the help of a trained facilitator. And at a cost of around £750-£850 a day to hire an external mediator, it offers employers much better value for money than going all the way to tribunal.

I think one reason why mediation is not used more widely in employment disputes is because there is no compulsion for companies to try it.

But in civil disputes, such as divorces, and commercial grievances, the law compels the parties to try mediation unless there is good reason why they can't. It involves bravery and for the two sides to be open and frank and to want to come to a workable solutions.

With the government pledging an additional £37m to Acas for additional mediation and related services over the next three years, it look as if more employers will be encouraged to give mediation a go.

There is too much emphasis on process and law in employment disputes; Mediation is one way to cut through this.

We're encouraging HR professionals to take a close look at mediation and to keep employee disputes out of Court.  Our recently published White Paper (free to download from the Human Law Medaition wesbite)  - Keeping Away from Employment Disputes and Court Room Battles - provides a Guide on how to approach workplace disputes and a full exploration of all the options available.

"Mediation is still in its relative infancy in the UK, despite alternative dispute resolution (ADR) being promulgated by the Woolf Reforms in 1999. More recently, however, there has been renewed emphasis on the method, largely in response to client demand, with the introduction by the Ministry of Justice of a National Mediation Helpline to increase awareness and access to mediation for the general public, and the creation of the Civil Mediation Council (CMC).

Last April the European Parliament approved a directive to encourage mediation for cross-border commercial disputes. In May, two of the country’s leading lawyers, Sir Anthony Clarke, Master of the Rolls, and the Lord Chief Justice, Lord Phillips, both gave separate speeches calling for greater use of ADR and mediation in particular.

In 2007 there were 12,050 calls to the National Mediation Helpline, of which 1,632 were referred to mediation providers. Some 774 cases led to mediation, of which 510 successfully settled – a rate of 66%.

Ironically it could be the economy that provides the best marketing campaign. Cash is king during tough times and businesses will fight over smaller sums of money. Mediation is speedy and cost-effective.

‘I certainly wouldn’t recommend anyone charging headlong into mediation alone,’ observes Justin Patten, solicitor and founding member of Human Law Mediation. ‘I still have my legal practice and I do training as well as mediating. The key is to have complementary skills and complementary forms of income. Any solicitor going into mediation should do so with their eyes open.’

But just how easy is it to combine a legal practice with a career as a mediator? ‘Very tricky,’ concludes Stephens. ‘You have to make a choice where you do your marketing, as there are only 24 hours in a day. But it is possible, particularly if you are in a specialist legal area, where it is desirable. As adjudicator you need current expertise and you need to be active in your field.’

Mediation training can benefit more than just mediators. Patten admits he is far better at handling client negotiation as a result of his mediation work. ‘You can focus far better on people’s motivation. In litigation, you focus just on your client’s interests, but you learn to look at the bigger picture. It makes you a better solicitor.’

One might think there is a conflict between being a lawyer, where the object is to generate fee income, and conducting mediation, where the goal is to seek early resolution and save costs. Not so, say lawyer-mediators.

McCarthy explains: ‘As a claimant lawyer running a business, you deal with cashflow and profit. Mediation means you get the cash in straight away, so insurers like it and it benefits your cashflow, while a trial can be costly for you as a lawyer and you are unlikely to be properly rewarded, which affects profit. So mediation makes sense.’"

Some observations:

1 The force is with ADR and mediation but for would be mediators be careful about entering the profession. It is very competitive and will get more so. Like any jurisdiction there are simply too many mediators going for too little work and as the article points out anyone can qualify as a mediator.

2 I think the key benefit o use of mediation is complementary skills. It does enhance comunication skills.

3 Recession times will lead more demand of mediation.

Against this background it may be worth HR Professionals attending a  one day workshop outlining how mediation will impact you and your organisation and will assist you in embracing the mediation process to allow you to be ahead of the game in the future.

It is withIDS - Income Services on Tuesday 14th October.

In this programme, peer mediation expert Gwynne Wilson Brown visits Kingswood Primary School in south London to see how their programme is going.

Gwynne meets up with learning mentor Sarah Harris and they look at a video they filmed when they were first setting up the scheme, discussing selection process. Through the rest of the day, we see:

• A top-up training session, where pupils hone their listening, empathy and trust skills
• Mediators putting their skills to the test and trying to resolve a dispute between two young children
• Mediators from a local secondary school running a workshop for Year 6 pupils

For Kingswood, the road to building their current team has been long and sometimes hard, but they now have a successful and effective group.

Please see link.

It is intriguing because in my experience many lawyers remain fearful of use of mediation but here you are beginning to see mediation being used at a younger level.   

These appear under 3 separate topics:

Mediation for Commercial Lawyers

Mediation for Employment Lawyers

Making Money Talk - Mediating Personal Injury Claims

For more details about these events contact MBL Seminars.

"Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr. Kiser said — and there is no way to know whether either side in those cases could have done better at trial. But the findings, based on a study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives."

My observations:

In the heat of a litigtion battle it is very easy for both sides to start focusing on the trial and to over-estimate the capacity to win a case be that in increased/lowered award depending on whether one is claiming or defending a claim. 

Lawyers motives is a difficult issue. When I discuss cases with lawyers generally most are concerned about obtaining the best deal for clients. Is there something amiss? How many lawyers are genuinely concerned about solely themselves and will focus just on getting their fee come what may. Not many from my experience but maybe I live too detached a life.

But. Within the Uk lawyer fees particularly at the top end have rocketed. As is the way there will be justification but from what I am seeing there is some exploitataion of clients. The market is not yet operating with efficiency. Long term this makes law firms vulnerable to attack once the legal market is opened up to non lawyers.

This made equal pay the most cited ground of complaint. Unfair dismissal, which is usually the most popular ground of claim, was second with 43,231 total complaints.

For me what is interesting data is theat we have not factored in any job losses which seem imminent as the UK economy runs into difficulties.

For the free guide my firm has produced on avoiding Employment Tribunal claims please click here.