December 2010
This year began with the Jackson report on the costs of litigation and is finessing as I write this in a major fandango about funding universities. Everything these days has to be costed, weighed and analysed, and mediation itself isn’t immune to the same process. Users and clients are asking themselves how best to achieve a positive outcome as quickly and inexpensively as possible.
If I asked all of you which of you have used conciliation to resolve smaller construction disputes you would probably end up with one or two of you only who have had the odd dispute conciliated. This is a real missed opportunity combining the benefits of both mediation and adjudication into one process. So what’s so special about conciliation when the only place we seem to have heard of it is in employment disputes involving ACAS?
What?
The mediator agrees to be appointed as a conciliator by the parties agreeing that he can act both as a mediator for a time limited mediation – normally a maximum of 4 hours followed by his making a binding but not final decision but only if the parties have not reached their own agreement. The point is that it is a contractual arrangement so that the mediation runs just like a normal mediation with the mediator meeting each party separately and together. In previous mediations I have met say on site, inspected the building work and negotiated with the parties, usually reaching a mediated settlement. But very importantly if necessary I can then make a binding decision that is enforceable just like an adjudicator’s decision. It avoids all the pitfalls of an adjudicator mixing his adjudication with mediation as he did in Glencot and Ben Barratt.
When?
Conciliation isn’t a universal panacea. I would not recommend it for a dispute involving a large number of issues, or for a very complex dispute. For instance the failure of a floor slab may well be better dealt with by an expert assessment. But it seems to be ideal for smaller building disputes where the costs of either a full adjudication or worse still of litigation would be disproportionate.
Cost?
Conciliations like mediations are usually done on a fixed fee basis – very different from adjudication. I could quote £750 per party for a time limited mediation on site within a 25 mile radius of Leeds followed by making my decision. The decision will be without reasons, but is otherwise fully enforceable.
Further information please look either at the conciliation part of my website with template agreements on www.anthonyglaister.co.uk or at www.ccgroup.co.uk.
Anthony Glaister
March 2011
Is it beyond the whit of mankind to devise a dispute resolution scheme that is proportionate and fit for purpose in the 21st century. The Yorkshire dispute resolution scheme was started in 2009 but its existence remains a mystery to all but a few enlightened practitioners. Here’s why in future you might be negligent for not recommending it to the client before embarking on litigation.
What is the Yorkshire Arbitration scheme?
If a Yorkshire man devised a scheme that had a fixed time limit of 86 days from beginning to end and had a fixed price for the arbitrator at £1,500 he might with pride suggest that it comes from Yorkshire. Well that is what it is and that is what it does! It starts with an agreement to arbitrate as you would expect. In the absence of agreement the arbitrator is chosen by the NE Branch of the Chartered Institute of Arbitrators. The time begins to run from the moment the arbitrator is appointed. The timetable is agreed and unless extended like adjudication the arbitrator has to make a decision within that time scale. The decision is both final and binding.
Why might you be negligent for not recommending it?
Whilst Article 6 of the European Human Rights Convention gives every citizen a right to a fair trial, there is nothing in the scheme that makes it unfair to expect an appropriate dispute to be dealt with by an arbitrator within a tight timetable. Some 98% of adjudicators’ decisions reached in little more than 28 days are accepted by the parties in finally resolving the disputes in question. Here we have a slightly longer timetable giving the parties more time to exchange arguments, evidence and documents. The timetable is not set in stone as any timetable is adjustable by agreement. But in the time taken to get to an exchange of pleadings in litigation you could have got to a decision. I suggest that such a tight arrangement is suited to any dispute that is capable of being dealt with in a days’ arbitration ie not a complex dispute involving the cross examination of witnesses and experts.
Why negligent I ask you! The clients are ever more informed about choices. It is a truism to say that unless you advise a client of all the choices available to resolve any dispute you might well be held to be negligent if you failed to advise what might be appropriate whether that be conciliation, adjudication or arbitration. That is a choice that may well be genuinely free in terms of the parties agreeing the process, or not where the contract puts how disputes are to be dealt with.
But it may go further than that. Failure to suggest a consensual means of appropriate and proportionate means of resolving disputes is on any view negligent. The days of simply relying on the courts for that residual right to a fair trial may well to limited. Whilst the right will always be there, the exercise of that right may well come at a price in terms of a successful parties right to be repaid it’s costs may in the future be proscribed.
In the 2010 case of Vector Investments v J D Williams 2009 EWHC the court looked at the circumstances and the behaviour of the successful party and using their discretion under CPR 44.3 ordered a dramatically reduced level of costs recovery. The winner takes all can no longer be regarded as a given result. Failure to advise and exercise appropriate ways to resolve a disputes resulting in excessive costs will in future be very much at the forefront of judges’ mind. That is why in future you may avoid using the Yorkshire Arbitration Scheme or some other ADR scheme at your peril.
Really Useful ADR Links |
Comments |
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| Arbitration | Chartered Institute of Arbitrators | No they are not just for arbitrators. They are the first port of call for private dispute resolution providing first rate training. |
| Adjudication | Adjudication Society | If you have to know the case law involving adjudication do click on the case section here. Otherwise it’s rather pedestrian. |
| The 1996 HGCR Act | You will also find the Gov Scheme somewhere else under 1996. | |
| Tony Bingham | Always a good read in Building Magazine from construction’s most entertaining and enterprising disputeologist. | |
| Conciliation | Chartered institute of Arbitrators | The CIArb is taking over appointing conciliators from 2008. But if the CCG site exists it is still worth a visit to find out the benefits of conciliation. |
| Mediation | ADR Group | A good site with lots of courses on from the first ADR provider on the blocks. |
| CEDR | Like them or not they still know an awful lot about mediation both here there and everywhere. Accessible for non members. | |
| Clerksroom | Lots of choice from the administrators of the national Mediation Helpline. Rather dominated by barristers. | |
| Consensus Mediation | A most enterprising provider with a good record of looking after its users. | |
| Cornes, David | Why put in a rival mediators’s site? Because David’s site usefully keeps one up to date with case law – sadly growing. | |
| In Place of Strife | If you are after the a la carte service it's found here. I list it even though they have forgotten me. Mark Jackson Stops is a wise old man in the field and produces some useful little articles. | |
| National Mediation Helpline | Cheaper mediations for smaller cases @ £250 or £375 per party. |
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| Association of Northern Mediators | A very useful site for DIY mediator finders in the north. Whilst it is basic it’s very user friendly. | |
| Government | Ministry of Justice | See the ADR section |
| Professional etc | ADR magazine | If you are rusty on what ADR stands for take a look here. |
| Civil Mediation Council | The regulatory council for civil mediation providers with aspirations to regulate individual mediators. | |
| The Law Society | As I can’t find the panel details on the site I am listing it only as one to watch in the future if it gets it right. Otherwise it will be confined to the sin bin. | |
| Venues | Yorkshire Dispute Resolution Centre | If you want somewhere nice and handy as a venue for your mediation contact me here, no matter which neutral you use. It's very very green! |
Mediation of Construction Disputes by David Richbell
Neighbour Disputes by Kevin Kennedy
REVIEW OF ‘NEIGHBOUR DISPUTES’ BY KEVIN KENNEDY
PUBLISHED BY THE LAW SOCIETY
Anyone involved in disputes between adjoining owners appreciates that these can be the most difficult, protracted and often disproportionately costly disputes that land on our desk. Until one reads Kevin Kennedy’s excellent book most practitioners wouldn’t appreciate quite how many situations involve neighbourly relations and some it is probably high time we had clear and practical guidance on managing these disputes.
He sees the lawyers role as a delicate balance between protecting the client’s rights and at the same time trying to make sure that it doesn’t get out of hand bringing to the fore the age old adage that perhaps lawyers should less assume the role of hired guns and more the role of healers achieving a balancing act between perhaps an unreasonable client, perhaps a belligerent neighbour and in any event a highly emotionally charged situation. But that doesn’t detract in any way from Mr Kennedy’s treatment of the rights and obligations of one neighbouring owner to the other and how to go about the niceties of the process of pursuing or protecting those rights and obligations. The book stars off with a pithy chapter summarising what boundary disputes are all about. ‘The starting position for virtually all boundary disputes is a client with a problem’ and he carries on throughout the book in the same user friendly style. It sets out the sources of information about boundaries and then indulges us in a merry romp of differing types of dispute.
Anyone building extensions or garden walls will probably have had to look at party walls and the 1996 Act. As with all subsequent chapters it sets out the problem, the rights of access and support and possible offences, and how to deal with appointing surveyors, enforcing access, and compensation. You then have an entire chapter devoted to securing access to neighbouring land, not that this often gets legal. Niggling issues arise over scaffolding, painting and repairing buildings can be part and parcel of a wider series of problems.
There’s a good section on the dreaded adverse possession with plenty of references to the case law. Easements and Covenants and the cause celebres of property disputes and the chapters were immediately pressed into use over prescriptive rights in an ongoing farming dispute, and so this review has indeed had some very practical benefit! Nec vi, Nec clam, Nec precario I shall quote with authority. But if we used Latin which we don’t any more summing up that prescriptive rights are establish so long as there is no arm twisting, stealth or permission neatly summarises the test. Then it goes on to cover things like maintaining, repairing and improving pipes, watercourses, rights of way etc. In the Covenants chapter Mr Kennedy deals neatly with the sorts of negative and positive covenants that we so often come across between not just neighbours but owners generally – not to build or keep dangerous animals on the one hand or to maintain or paint on the other. Anyone listening to the Archers will appreciate how easily escaping pigs damage adjoining gardens! There are also some useful hints on getting rid of covenants as of necessity, by consent and on grounds of redundancy. Many such applications result in pretty vituperative disputes some of which can be referred to the Lands Tribunal.
Some modern problems are particularly dealt with such as mobile phone masts and the dreaded Leylandii hedges are useful. Trespass and Nuisance normally go hand in hand when relationships between adjoining owners break down. These are very practically dealt with root and branch if you will excuse the pun. Immediately following that is a good summation of Injunctions both prohibitory ‘do not’ ones and mandatory ‘do’ ones. One hates to think of applications for injunctive relief applying to neighbour disputes. But it is a fact that gates are locked, animals escape, boundaries encroach – all these essentially non monetary sorts of things might end up having to be enforced through injunctive relief. Kennedy even finds time to deal with ASBOS and harassment claims which can weave themselves into the rich tapestry of neighbour relations.
If you think we have got to the end of the book we are only half way through. Planning issues cause a lot of angst. As a building lawyer I have come across many cases where neighbours have stopped progress on site because of breaches or potential breaches of planning or building regulations or other sorts of encroachments onto their property referred to earlier. Resorting to stop notices right the way to injunctive relief are well covered. There is a big section on Litigation and if I have a criticism here I would have expanded the part that refers to costs as these can be so disproportionate in neighbour disputes. To a certain extent that is redressed within the next session on the court’s approach to neighbour disputes as he has taken a great deal of care to look at complying with the pre-action protocol, which perhaps in these sorts of disputes is more important than ever. It goes back to that balancing act solicitors have to do setting out the facts, the rights and obligations and what the parties should do about it. In that chapter mediation is covered in some detail as, of all disputes, these probably merit early mediation – you have issues that can probably easily be encapsulated in correspondence; you have parties who are quite capable of expanding and increasing the costs of the dispute, and you have the continuing relationship one neighbour to the other. As the author so rightly says ‘There is an opportunity for the lawyers to try to sow the seeds of a better relationship in the future, even if this is only achieved begrudgingly by a highly symbolic handshake and mutual mutterings between neighbours who may not have spoken in years’. That must be better than an imposed solution that might be a thorn in the side for years to come.
The whole book comes with a nice little CD with all the forms and precedents you will need if you have to take the dispute to a more formal level. This is certainly a very useful edition to the contentious property lawyer’s library. I am certainly not letting my copy go until I have dealt with that thorny prescriptive problem down on the farm!
Anthony Glaister – Published in ‘Solution’ August 2009 edition.
MEDIATION OF CONSTRUCTION DISPUTES
Author : David Richbell
Published by Blackwells Publishing Limited
ISBN 978-1-4051-6931-8
Paperback – 175 pages @ £44.50
Reviewed by Anthony Glaister
It is high time that a book came out that is specifically aimed at mediating in the construction sector which is probably the most prone of any area of business to fractious disputes. But this book is a veritable punnet of strawberries for anyone looking at managing conflict whether it’s in construction or not. It begins as it ends written in a practical easy to read format laced throughout with examples from Richbell’s enormous experience as a surveyor, mediator and as a trainer of mediators.
It begins with a punchy chapter on how the construction industry gets into so many disputes taking us through such problem areas as poor communication, personality clashes and unusually complex arrangements. The challenge for us lawyers is to advise appropriately, so he then looks at the various options ranging from negotiation to arbitration and litigation. Given the ease of using adjudication that’s a tempting route; but the very real benefits of using mediation are set out in easy to read sections. You would expect a seasoned mediator to conclude that ‘mediation restores the focus on business needs and sensible solutions’. He writes about achieving better deals, with speed, economy, flexibility, preserving ongoing relationships and finality.
The best sections are in the middle in guiding us through how best to prepare for and present your client’s case in mediation. Hence my comment that this is a good read for anyone involved in commercial mediation. If the mediator’s role is to move the parties into becoming more co-operative then that can involve a very different mindset from the lawyer’s role in litigation. We are given a really good insight into how best to prepare for mediation, key to getting the mediation off to a good start. Position statements, documents and pre-mediation discussions are all dealt with. Then we move into the mediation itself, looking at best practice both for mediator and representative – it is easy to foul up a mediation simply by choosing the wrong words said in the wrong way. The example of the barrister who tried to steal the show is particularly revealing. Whilst mediators can prime parties and their lawyers, there is a big responsibility on the representatives to advise, to prepare and to present their clients case, and then in helping the clients do their own risk assessment – the useful examples of two types of risk assessment are particularly useful. Richbell sees the role of ‘de-demonising parties’ as vital in achieving a realistic foundation for negotiation and settlement.
There are helpful hints at how best to manage the mediation – flexibility and tailor made for the dispute in question. Take for example this pearl of wisdom. ‘Don’t let the joint session end until its usefulness is exhausted’. We tend to forget that mediation as a branch of assisted negotiation and not an isolated process, and oiling the wheels of parties’ ability to negotiate directly is as important as the shuttle cocking during the private sessions. There is much also on looking at particular qualities in the mediator developing rapport based on patience, optimism, clarity of communication and ability to build a good relationship with the parties. Sense of humour and the ability to source the wine bottles to toast a successful settlement are other skills – the latter being mentioned at least 4 times.
It doesn’t end there as there is a useful chapter on dispute avoidance that perhaps could have come at the beginning rather than towards the end of the book. Any solicitor reading this could do no worse than memorise the 12 rules on how to avoid disputes arising in the first place. It hones in on the life changing skills needed to reduce levels of conflict, lessons for the good manager as well as a good mediator. At the back you will find precedents for agreements, checklists, risk assessment methods, Tomlin orders and the sorts of things you would expect from a very ‘hands on’ user friendly guide to mediation. This is a great little guide that’s easy to read for anyone involved in sorting out commercial disputes.
A Sudden Outbreak of Common Sense
Some time ago I was asked to review the dispute’s resolution industry, and practitioners wouldn’t be surprised if I put my rose coloured mediators’ glasses on to incant the virtues of mediation over litigation. The remit today is in fact far wider than that looking at the way we both handle disputes and support clients in advising how to avoid them in the first place. I recognise that I neither have the space nor much inclination to discuss the thorny issue of funding.
Some of you may have read ‘the End of Lawyers’ by Professor Richard Susskind (OUP 2009). His theme is very much ‘change or die’, that we have to adapt to changes in society and think more creatively, imaginatively and entrepreneurially. He sees contentious lawyers as distorting the process of problem solving altering the focus away from the parties and their desired outcome to us as advisers, incurring additional cost complexity and delay in the process. But I hear you say that things have improved so much in the past ten years. The Woolf reforms have undoubtedly speeded up formal dispute resolution, reducing the numbers of cases going to trial. Pre action protocols, the encouragement of mediation, better use of technology and document management and a lot more have all played their part in improving things.
Yet despite all this users of the system still find much to be critical about and in these difficult times cost is at the forefront. Take pre action protocols; these should ensure that far more cases are resolved earlier at very considerably less cost. Undoubtedly many do settle earlier avoiding litigation. But frontloading preparation can mean that costs become disproportionate at a relatively early stage. Take a building dispute with exchanges of expert evidence. All that can take place admirably within the protocol period. Trial by correspondence becomes the battle of the experts. Yet by the time a case gets to mediation all too often there has been little attempt to talk to each other; more so talking at each other. I see it day in day out in my mediations where costs overlay puts a strain on being able to achieve otherwise acceptable settlements. The result all too often is an otherwise unacceptable cop out with the benefit of relief all round in avoiding the uncertainties and cost of litigation.
Taken outside the context of pure mediation, the clients’ basic requirement to achieve a positive outcome as quickly and inexpensively as possible may be subsumed by the subsequent dispute resolution process. They don’t understand or usually don’t understand the full implications of what they are about to be involved in. Advice to clients by representatives far from being bold or creative, is often ambivalent or plain over optimistic. Advice on the way forward is limited and unexciting. With those representing the other parties, far from building bridges we find that often differences are magnified and communications fossilised. Fee earners change or matters delegated to those least able to take a pragmatic approach to direct negotiations. Opportunities are missed to put views across outside a formalised process. This is not the way forward in the 21st century.
As we develop better ways to communicate via phone, internet and video link, and as the means of passing submissions and documents becomes virtually instantaneous, facilitating the exchanges of information and points of view should vastly increase the prospects for earlier settlements if not by negotiation by mediation or adjudication. When working for Lloyds brokers in the 1980’s I was taught to always put in a paragraph headed ‘Action’. Here was the opportunity to suggest what should be done to secure the desired outcome. These days there are so many other faster and often more holistic options outside negotiation and litigation. When considering what may be ‘appropriate’ take a look at the way construction disputes are handled and think outside the box.
Statutory adjudication can be done and dusted in 28 days and mediation is the regular alternative. Litigation is a rarity particularly given that almost 100% of adjudicators’ decisions are accepted by the parties. The changes made in 1996 were made at the insistence of an informed industry; it was client driven. Legal advisers are as likely as not to be involved in advising about how to avoid disputes and not just how best to manage them. The mystic line between contentious and non contentious practitioners was effectively broken. Surely we should be utilising direct negotiations, earlier mediation, and other options such as early neutral evaluation, single expert assessment, adjudication, and fixed price arbitrations such as that run by the Yorkshire Arbitration Scheme? All these can provide the client with early resolutions at less cost whilst apart from arbitration preserving the ultimate right to seek a final and binding decision in the court. The forward thinking, positive, value added solicitors’ input here challenges the status quo. I wager that most of you reading this article have never used or even considered early neutral evaluation!
All of us should look in the mirror and ask whether a client’s access to justice is best served by historic notions of an Englishman’s right to a fair trial in the court. Our monotheistic approach to dispute resolution is as Richard Susskind suggests not fit for purpose in the 21st century a message which will not be lost on the current government. Clients are now better informed than ever before. Solicitors are going to have to respond to this challenge or wilt. New service providers based on the new market will emerge. Is this yet another item in the Tesco shopping trolley?
07.02.11
Mediation has had its day - says Lord Neuberger on 10.11.10
On the ANM discussion board I alluded to the Master of the Rolls speech. I thought at first 'hell how could he say the mediation bubble has burst'; but to do so would be to miss the point.
This was a wakeup call. There is a danger of seeing mediation as being the answer to everyone’s dispute. The judicial system is an arm of the state; it's part of the fabric of government, and underscores citizens’ rights. Us mediators provide a service - some would say an adjunct - that complements the justice system; but it's not he says on an equal footing. So he reminds us that there should be a balance between the two - no hint of mandatory mandatory here folks. I think he rather went over the top in establishing the difference between a whale and a minnow. But his wee 19C quote from Sir James Mathew said it all 'In England, justice is open to all - like the Ritz Hotel' (he can't be serious can he?) But anyway I think we all would agree that mediation isn't a substitution for access to justice. He clearly didn't like the idea of forcing people to mediate as he considered that it would have a greater impact on those who could barely afford to mediate let alone litigate. Someone should tell him that, when parties can access mediators for very little, with little extra over costs and delay caused by mediation, that compares very favourably with the flip side of continuing litigation. As he says 'Financial pressure on some litigants may well mean that a mediated solution becomes a substitute for justice because the requirement to mediate is a fetter on access to justice'. He sees that as providing an absolute limit to its development - hence the title to the speech.
He then goes on to discuss the empirical evidence about how successful and how much time and money mediation saves reciting Hazel Genn's 2007 hors d'heuvres on 'Twisting Arms' to say that the jury's out whether there was very much difference between mediated and non mediated cases, and that for instance the court based mediators dealing with thousands of small claims actually cost more money than they saved. I wonder how many mediations he has had the opportunity of observing. If 80% or thereabouts are successful, you only have to see the satisfaction levels of the users and often the outright relief that they no longer have the cost and uncertainty when being preoccupied with our precious civil justice system. Yes I agree that mediation isn't a magic potion; but it's a damn good one.
The lack of empirical evidence is worrying as it clearly doesn't reflect a lot of what we see and feel in those mediations we do or observe. We log or should log in results of mediations on Survey Monkey. We should also ask users to complete feedback forms. Shared information is very important if we are able to produce the factual evidence that shows mediations increasing settlement rates, earlier than they would otherwise do, saving costs and at greater speed. ANM should look at better ways of collating and improving information.
There is brief reference to mediations reducing court incomes as the courts aim to be self financing. Whilst this has to be put in context, this is worrying as there must be an element of self preservation amongst junior judges and court staff such that mediation is perceived to be a threat. Whilst this takes us away from the access to justice debate realpolitics within the civil justice system throw up innate conflicts in whether mediation is encouraged or not. Possibly we should expect the encouragement to be lukewarm in some quarters.
But it is in looking at the future that the MR hits the jackpot. Taking his key from both Hazel Genn and LJ Jackson it is the need for education that is the key challenge for the future. That is our challenge as well.
05.01.11
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