St Philips ADR Team

An Overview of Family Mediation By Alison Cook

adradmin — Thu, 11 Aug 2011 09:53:23 +0000

Family Mediation is a process in which an impartial third person, the mediator, assists those involved in family breakdown to make arrangements to plan for or following a separation or divorce.

The process is managed by the mediator but the content is decided by the couple. By this method, it is hoped that couples will be able to explore the issues and concerns they have and to reach their own joint decisions. Mediation also offers couples an opportunity to explore their continuing communication together for the future.

Issues generally centre on arrangements for divorce or separation, children, finance and property.

Mediation can, therefore, assist couples at the point of breakdown of their relationship to consider their options and make arrangements they can live with for their separate lives - particularly if children are involved. It can aid parents make, and when necessary or appropriate, review arrangements for
their children, reflecting the changing needs of children and of parents going through the process of divorce and into new systems of living.
Comprehensive or 'all issues' mediation aids couples to look at all issues arising on separation and divorce including arrangements for children and financial and property decisions.

However, mediation is not a universal panacea, or directly an aid to reconciliation. Mediators do not offer counselling or legal advice. Participants are advised to 'check out' all proposals with their personal lawyers and most mediators/mediation services will provide some form of summary of
outcome/memoranda of understanding to personal lawyers - with the agreement of the couple concerned.

Mediation is a voluntary process. Mediators are impartial. Decision-making authority rests with the participants. Confidentiality (with the exception of harm to another person - most particularly children – so all professional mediators work within accepted codes of practice for child protection.

The process can be seen as divided into five major stages:

1. Establishing the Arena
2. Clarifying the Issues
3. Exploring the Issues
4. Developing Options
5. Securing Agreement

The advantages of mediation:

1. Speedy
2. Low cost compared to litigation
3. Parties retain control over the outcome
4. Preserves relationships
5. Privacy.

Please make contact with our clerks to get the ball rolling.

Email: family@st-philips.com

Telephone: 0121 246 1600

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Mediation – the way forward

adradmin — Mon, 01 Aug 2011 15:29:53 +0000

By Andrew Maguire, Barrister at St Philips Chambers and Accredited Commercial Mediator

On 10 May 2011, Jonathan Djanogly, the Parliamentary under Secretary of State at the Ministry of Justice, gave a speech at the Civil Mediation Council conference in Manchester which outlined the Coalition Government’s proposals to expand the use of mediation as an alternative mechanism for effective dispute resolution.
A mediation is usually conducted over an uninterrupted day, in private, and aims to use the skills of the trained mediator to identify hotspots, aid communication, to work through perceived intransigence and eliminate distraction, to seek out an all-sided solution and bring the matter to a speedy close.

The key to mediation is in the active role that the disputing parties themselves take. When there are differences of opinion that seem to make negotiations impossible, the skilled and impartial mediator can provide the crucial catalyst to making the parties’ negotiations constructive, future-focused, and pragmatic.
Therefore, mediation can bring any dispute to a swift and early conclusion avoiding the need for costly legal involvement, and keeping protracted stand-offs to a minimum, each of which hamper productivity and post-contract relations. Mediation also enables parties to consider practical commercial solutions beyond those that a Court can order and in so doing it provides the logical, practical, cost-effective and sustainable answer to contractual problems.

The Government’s proposals are for the automatic referral to mediation to be formally introduced as a mandatory step in all small claims (there is an ongoing consultation whereby the current limit of £5,000 is proposed to be raised to £15,000). For the first time ever, mediation would become part of the court process. This would allow many more cases to settle without the time and stress of a court process, and without the parties ever having to travel to court. Obviously, the relatively small number of cases that did not settle, and required judicial intervention, would still be able to go on to a hearing before a judge.

In larger value claims up to £100,000, the proposal is to introduce mediation information sessions. This would allow parties the opportunity of hearing, directly from a mediator, the benefits of mediation. The Government accept though that there will be certain circumstances or certain cases that may not be applicable to automatic referral or to mediation information sessions, thus consultees are being asked whether some provision should be made for exemptions to these processes.

The Minister concluded his talk by declaring as follows:

“Our system of civil justice already recognises the importance of alternative dispute resolution in the civil procedure rules and in the pre-action protocols. Despite the excellence of our judges, judicial intervention does not always provide the best solution. The coalition government places great importance on helping the public understand the options available to them at an early stage. Litigation can be painful, expensive and confrontational, but by contrast, mediation can explore solutions within a spirit of cooperation, and can bring about better, sometimes more innovative solutions, while maintaining good business relationships.”

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Simon Clegg

adradmin — Tue, 19 Jul 2011 09:45:40 +0000

CV Download:

screggADR.pdf

Simon has practised as a barrister since 1981 with an interlude of 3 years when he practised as a solicitor in Sydney at one of Australia’s largest commercial firms, Freehills. He has a wide experience of commercial and chancery litigation involving particularly contractual, banking, insolvency, company and property disputes. He continues to be listed in Chambers and Partners Guide to the Bar as a leading junior in commercial dispute resolution.

Year of Call:

1980

Telephone:

0121 246 2065

Contact Details:

Justin Luckman E: jluckman@st-philips.com T: 0121 246 7050 Stuart Smith E: ssmith@st-philips.com T: 0121 246 2065.

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Prepare an Effective Presentation of Your Case

adradmin — Mon, 11 Jul 2011 09:06:16 +0000

Preparing for presentations isn’t easy.

Many people are nervous about talking in front of an audience, usually because they are afraid of making a mess of it. Ironically, it is uncontrolled nerves that are most likely to lead to a poor performance - so building confidence through preparation and practice is really important.
Recognise that mediation isn’t a court. You will have a skilled mediator and may have your lawyer or other advisors present.
At an early stage in the mediation you will be asked to make an opening statement.

Pre mediation preparation

• Contact the mediator and find out how long each side will have for the opening statement.
• Whatever you say in mediation is confidential and without prejudice so it cannot be used against you in court (but, if you have one, be advised by your lawyer).
• Start preparing far in advance by thinking through what needs to be said. If you start preparing early, you'll have plenty of time to refine the presentation
• Be clear about the strengths and weaknesses of your case. If you have a lawyer have a meeting and identify them.
• Presentations at mediation can be extremely powerful and you should think carefully about what you want to get over to the other side. Identify what points you want to hammer home.
• Try not to be confrontational. You might think that the other party is a thief and a cheat. Will it really help you reach a settlement if you say that?
• Sometimes an apology, or recognition of distress can have a major impact on another party.
• Draft the text of your presentation. Stick with a standard format:

(a) Tell them what you’re going to show them.
(b) Show them. Assume the audience will be familiar with the basic concepts that form the foundation of your presentation. Arrange these issues in a logical sequence. Use short sentences with simple constructions. Be strict about including only what is essential information for the presentation, and removing all the non-essential tidbits. Attempt to identify problems or questions the audience may have and address them.

(c) Tell them what you just showed them.
• Simulate the real thing. Albert Einstein said "what a person does on his own, without being stimulated by the thoughts and experiences of others, is even in the best cases rather paltry and monotonous. Swallow your pride and request someone trusted to be your "audience," The objective is have practice in maintaining composure in the stress-inducing experience of a high-pressure speaking situation. Ask for a candid assessment of both substance and delivery skills.

• Decide how you are going to deliver your notes. Are you going to read them out?
At the mediation session

• Speak slowly and clearly.
• Speak loudly enough so everyone can hear.
• Remember to breathe slowly and deeply.
• Listen with care to what the other party or parties are saying. You might learn a great deal about the impact of the dispute on them and get clues about possible settlement.

PROCEED WITH MEDIATION WITH THE INTENT TO RESOLVE THE DISPUTE

adradmin — Mon, 11 Jul 2011 08:53:46 +0000

Continuing in the series of articles on ‘Ten Steps to a Successful Mediation’, Sean O’Brien considers the proposition that a party must enter into mediation with the intention to settle.
As Sophie Garner observed in the first article in the series, parties may decide to mediate at any stage in the dispute from soon after the opening salvoes are fired up until practically the eve of trial. A party’s objectives, both conscious and unconscious, will vary as the dispute and subsequent litigation mature, and so the stated and unstated objectives for any mediation will alter and evolve.

Therefore, it is a bold statement indeed to say that a party should only enter into mediation with the intention to settle and, if it is a rule, then it is one more honoured in the breach than the observance. There are many reasons why a party would choose to enter into mediation beyond the immediate hope of achieving settlement.

A common objective for agreeing to or suggesting mediation in the early stages of the dispute is to gather as much information as possible about the other side’s case before a great deal of costs are incurred. Whilst mediations are always conducted ‘without prejudice’, much of the relevant documentation may well be disclosed well before it might otherwise have been. The information gathered at mediation could be used to focus one’s own case preparation; ‘knowledge is power’.

Mediation might be used by a party to mount a show of strength or test the other side’s resolve. In particular, if one is confident of the strength of one’s case or suspects that the other party is ‘trying it on’, it might be hoped that a robust performance at mediation will influence the other party’s strategy later in the action. Additionally, observing how one’s opponents and their legal team perform at a hard day (or even longer) of mediation might give a useful insight into their motivation, objectives and potential weaknesses.

A mediation arranged close to the date of trial might present advocates with an opportunity to rehearse cross-examination or to experiment with possible lines of questioning (if the other side allows their witnesses to speak!). Of course, one runs the risk of ‘tipping off’ the other side or giving their witnesses a trial run at giving their evidence (an opportunity that might be taken by one’s own witnesses, should the other side attempt to rehearse their own cross-examination). However, ineffective lines of cross-examination could be discarded without having prejudiced one’s case at trial.
Many parties agree to mediation to avoid adverse costs orders resulting from an unreasonable refusal to enter into ADR. However, the costs of mediation are dealt with in the mediation agreement and are more often than not borne equally the parties and are not recoverable as costs of the action.

What can be said it that a party should not enter into mediation in the hope that it will ‘win’. A professional mediator will resist any attempt by either party to analyse the strengths and weaknesses of the parties’ respective cases, either comparatively or in isolation. It follows that a party must not expect the mediator to tell those present who will win and who will lose, or to force a settlement on the party with the weaker case.

In conclusion, mediation is a powerful tool in the litigant’s armoury. It should be deployed principally with the genuine intention of reaching a negotiated settlement, and for another primary objective only when the expected benefits outweigh the likely costs and the risk of exposing one’s own side to the other’s scrutiny. One should never expect the mediator to rule in one’s favour or, indeed, for the scales to fall from one’s opponent’s eyes and for them to ‘throw in the towel’. However, even if a settlement is not achieved, professional planning and presentation will ensure that the cost of mediation is still money well spent

Alison Cook

adradmin — Mon, 04 Apr 2011 12:04:35 +0000

CV Download:

acookADR_CV (3).pdf

Alison has been in practice at the Bar since 1989. She now has a broad family practice, predominantly in financial dispute fields coupled with child related disputes and Trust of Land Act and Court of Protection work. Her experience over many years includes a substantial number of high value financial cases, and very many disputes concerning companies. Alison acts for clients whose overriding priority is achieving a cost effective solution to their dispute dilemmas.

Year of Call:

1989

Telephone:

0121 246 2065

Contact Details:

Mark Mansell E: mmansell@st-philips.com T: 0121 246 2065

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When is the Best Time to Mediate

adradmin — Wed, 02 Mar 2011 16:56:07 +0000

One of my favourite moments in the US comedy drama series ‘Ally McBeal’ was – as I recall - when the character ‘Biscuit’, a senior and somewhat whimsical lawyer, was due to have a negotiating session in a case he was handling. He walked into a room where the other lawyer and the clients were gathered, sat down and pressed his fingertips together in a moment of contemplation. With all eyes expectantly upon him he stood up, declared “This isn’t the right time to talk”, and stalked out of the room leaving everyone wondering why. Was this the end of negotiation? Perhaps an interesting tactic but not one that most lawyers would be bold enough to execute.

So when is the best time to consider mediation? From the first moment at which two individuals realise there is a dispute brewing until the end of a hearing, there are a multitude of points at which arranging a mediation would be advantageous to one or both parties for many reasons not just settlement. Of course the earlier the mediation takes place the better value for money in terms of costs savings the parties are able to achieve. But in some cases parties may be unable to countenance ‘speaking’ to each other before there has been at least some blood letting via solicitors’ letters and pleadings. On the plus side, pleadings can distil the claim into succinct issues, and so it is sometimes worth waiting for them so that the parties and their lawyers are focussing on the same key points at the mediation. Balanced against this benefit is the potential disadvantage that may arise by focussing on the legal issues to the exclusion of the ‘non-legal’ factors behind the dispute.

What is for certain is that once on the trial preparation treadmill it is difficult to step off unless some intervening event causes one or both parties to look up. Court based orders to consider mediation can work, but are sometimes not treated with seriousness by lawyers who by this time may have much riding - costs wise - on the matter reaching hearing. The key reason that some may decide to enter into mediation is as a litigation tactic: to obtain more information on the other side’s case; to drive home the other side’s weak case in preparation for demolishing it at hearing. Accurately timing an open and magnanimous letter giving all the good reasons to mediate with a finely pitched offer can work as a negotiating tactic in itself.

Finally, the ‘last minute mediation’ can work wonders: the imminence of the trial itself and the reality of being cross examined can sometimes focus the parties’ minds sharply on whether the differences between them are, in fact, insurmountable.

So rather than turning your mind to mediation with any seriousness just a week before hearing, and realising then that it may well be too late, why not think of it as your client first contacts you and says they have a problem? That way you can make a clear and reasoned decision as to where in the whole process – from pre-litigation to point of trial – where a mediation is likely to be most meaningful and productive.

Sophie

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Mediation

adradmin — Tue, 21 Sep 2010 11:40:51 +0000

Mediation is a voluntary, non-binding, private dispute resolution process in which a neutral mediator helps the parties to reach a negotiated settlement.

In the traditional litigation process it is a common experience to find that many cases settle at the door or the court. Unfortunately, by then most of the costs will already have been incurred. The purpose of mediation is to facilitate a settlement at an earlier stage by bringing the parties together with a trained Mediator. Mediation is an ADR technique, which enables the parties to resume, or sometimes begin, negotiations. A good Mediator will change the dynamic of the dispute by bringing negotiating, problem solving and communication skills to the negotiating process. All of these skills are exercised by the Mediator from a position of independence and neutrality.

Mediations are not structured in a rigid way. However, most mediations tend to start with a plenary session in which both parties make presentations to each other in the presence of the Mediator. This is followed by private meetings between each party and the Mediator and, as appropriate, meetings between experts, or lawyers, or the clients themselves. The flexibility of the mediation process is the key to its success – there is a high (80%+) rate of settlement either at the mediation itself or shortly afterwards.

We believe that mediation is particularly suitable for cases where the parties are in a continuing relationship such as suppliers and their customers, franchisors and franchisees, landlords and tenants, employers and employees, members of the same family in dispute about a business or inheritance, or neighbours.

Mediation has been adopted as a policy by many organisations, which are regularly involved in litigation, such as insurance companies, who sometimes agree to pay all the costs of mediation to encourage the other party to take part. Normally the parties to the dispute agree to divide equally between themselves the fees of the Mediator and the costs of the accommodation. Legal Aid has been available for mediation since November 1998. Court proceedings are sometimes, but not always, ‘stayed’ during a mediation.

There are several organisations that train and accredit mediators and provide mediation services, the best-known ones being the ADR Group and CEDR. Others include the Chartered Institute of Arbitrators, and the Academy of Experts.

Court based mediation schemes are becoming more popular in the UK, but are available only in selected cases: examples are the Court of Appeal mediation scheme, the Lawworks Mediation Scheme and the small claims telephone mediation services at Birmingham County Court, and the Employment Tribunal judicial mediation scheme.

The main advantages of mediation are:

There is no compulsion to take part or to reach an agreement, so that parties feel comfortable with the process, and confident that a decision will not be imposed upon them. The settlement is the parties’ own.
There may be a substantial saving of legal costs if a settlement is achieved at an early stage.
The process is completely “without prejudice” and parties can reveal weaknesses and difficulties and examine them in confidence with the Mediator.
Flexible and lateral solutions can be achieved which could not be ordered by a court, such as a change in job description or the grant of a new supply contract.
The parties have substantial control over procedures and the mediation can be arranged at a time and place convenient for the parties.
At the conclusion of the mediation, if successful, the settlement reached is recorded in a document that becomes a legally enforceable agreement.

Disadvantages of mediation are:

The process may occasionally fail to achieve a settlement.
Mediation may not be appropriate if an urgent remedy such as an interim injunction is needed.
At St Philips ADR Ltd we can provide fully trained and accredited Mediators, and have a suite of purpose built rooms where mediations regularly take place. We are able to offer administrative support, including video-link and all the necessary refreshment facilities.
St Philips Chambers can additionally provide a large number of barristers who have undertaken specialist training with CEDR for representing clients in mediations, with specialist legal experience covering a wide field, including commercial and property disputes, employment and discrimination matters, professional negligence and personal injuries and clinical negligence claims.

Thanks for Getting in Touch

admin — Wed, 30 Jun 2010 07:45:13 +0000

Thank you for contacting the St Philips ADR Team.

We've received your message and one of the team will get back to you as soon as possible.

Why St Philips ADR?

admin — Tue, 29 Jun 2010 17:07:44 +0000

At St Philips ADR Ltd we can provide fully trained and accredited mediators, and have a suite of purpose built rooms where mediations regularly take place. We are able to offer administrative support, including video-link, and all refreshment facilities.
If an advocate is required by your client for the mediation, St Philips has a large number of barristers (in addition to those who are accredited mediators) who have undertaken specialist training with CEDR for representing clients in mediations. Their specialisms cover a wide field of work, including commercial and property disputes, employment and discrimination matters, professional negligence and personal injuries and clinical negligence claims.