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 Dispute Resolution: Mediators: UK-wide
 

Dispute Resolution : An Introduction

Contributed by Dr Karl Mackie CBE, Mediator and Chief Executive, CEDR

Negotiation is an everyday activity for lawyers, and many would rightly regard themselves as excellent at this part of their job. Yet we all know any negotiation can become deadlocked and that disputes can arise which are hard to resolve or that can escalate into crippling claims and costs.

Thanks to the Civil Procedure Rules mediation is a familiar concept to legal practitioners but that does not mean it is currently being used as often – or as early – as it could. This is a pity as the great majority of mediations settle disputes on the day of the mediation and more still within a few weeks of the issues being explored. At its most basic an early mediation offers a unique process for effective ‘strategic’ review of a dispute and its attendant risks.

Safety first

We lawyers are, by nature and necessity, risk averse. Yet there is very little risk for lawyers when it comes to mediation. As a needs-based process, with outcomes ultimately in the control of the client, mediation stands a better chance of giving clients what they want, rather than an imposed decision. Mediation is quicker than a trial, normally running for a day which means it is less expensive for the client. These benefits, along with others, mean that lawyers will be more likely to keep their clients both satisfied and solvent - which are the keys to repeat business, recommendations and future referrals.

Earning trust

However, the quality of the mediation you receive all comes down to the appropriateness of the mediator used on your dispute. In order to ensure this there are a number of questions it is advisable to ask yourself when recommending a mediator for a case:

• Are they trained to the highest standard? A surprising number of lawyers instruct mediators with no formal mediation qualifications just because they are well known in that sector. The quality in such mediations can be variable.
• How do you check their recent performance in mediations? Mediation is a skill that is developed and enhanced with use, yet is the mediator subject to continual feedback on their performance so that their skills are refined? Using the same mediator repeatedly can be potentially hazardous, as staleness and over-familiarity can set in.
• Do they have strong relevant professional experience (important when a case is complex and high value) or is cost-efficiency the most pressing requirement (in which case an up-and-coming mediator might be the right option)?
• Will your client (and the other side) be able to work with that mediator and their particular mediator style or personality? What attributes are important, being able to put people on edge at ease or challenging entrenched positions? Do some basic research into the personality you are selecting because being a respected expert in their field does not mean a mediator will not “put your client’s back up”.
• How much time will the mediator spend preparing for your case? How much effort will be expended following-up after the day to ensure all elements of the deal are finalised? Clients do not just want a process; they want engagement from a mediator. This requires good preparation and excellent follow-up because the reality of many disputes is they need consistent commitment – not just turning up on the day.
• Do you want a narrow-lawyer focus or someone with broader commercial experience and ‘nous’? One of the strengths of mediation is that it can go beyond immediate legal issues and risks, finding creative and commercial solutions more appropriate to the needs of the parties.
• Do you want to spend months of wrangling (with associated costs) over the identity of the mediator. Agreeing to go to a reputable mediation provider can simplify appointment choices and save clients costs.

Current impetus


There have been many recent developments which show that mediating will become more essential for lawyers in the near future.

Jonathan Djanogly MP, the Ministry of Justice’s ADR Minister, speaking in May 2011 at the Civil Mediation Council (CMC) Conference in Manchester has promised the biggest shake up to the civil justice system since the Woolf Reforms. A commitment by the government to reducing massive debt, means that an accessible, efficient process like mediation is the ideal tool to help do that in civil justice.

Other developments bringing mediation to the fore in recent months include:

• The Ministry of Justice’s consultation “Solving disputes in the county courts” is an opportunity for mediation to go further than before: “information sessions” to encourage mediation in every claim under £100,000 and automatic referral to mediation for claims under £15,000 are being considered.
• The Department of Business Innovation and Skills have consulted about greater use of mediation in all employment disputes as an alternative to tribunals.
• The implementation of the EU Directive on Mediation for cross-border disputes is now live – mediation is now mandatory in Italy, encouraged in Germany and enshrined in Ireland. The implementation, which has come into force in the UK, creates a different climate for resolving European disputes.
• UK Trade & Industry has announced with the Ministry of Justice it will work to make the UK the world centre for mediation (along with arbitration and the courts). All of these moves create the potential for a new chapter in the way in which disputes are resolved and the way mediation is accessed.

Getting the best deal

In the current economic climate and legal market it can sometimes feel as if lawyers are under mounting pressure from every quarter – competition, reforms and tight budgets combining to make work and survival harder. Using mediation to resolve disputes should be regarded as a positive financial and client-relationship aid to legal practice in these difficult times. It might even increase your capacity for the number of disputes and clients you can work with.

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Dispute Resolution: Mediators: UK-wide

Pinsent Masons

The "incredibly accessible and thoroughly prepared" Paton has firmly established himself as one of the leading mediators in the UK. He is particularly sought after for complex, high-value construction disputes, and also regularly mediates professional negligence and property cases. "He is effective at getting the parties to relax, and doesn't waste any time before pushing towards a resolution," say sources.

Serle Court

Rogers provides "a calming influence in a hostile environment" and "has complete mastery of the relevant facts in complex mediations," according to enthusiastic interviewees. A full-time mediator, she handles both domestic and international cases. Her core expertise lies in chancery work, ranging from trusts and probate matters to company and partnership disputes.

Independent Mediators

Marsh has an excellent mediation practice, both domestically and internationally. Sources endorse his "affable" style, noting that he is "keen and willing to broker a deal, all the while ensuring neither party feels forced." His broad practice encompasses commercial contract and commercial fraud cases as well as company, IT and IP disputes.

Independent Mediators

Dodson "quickly earns the trust of parties" in mediations with his "strong commercial perspective" and "cerebral, yet assertive" approach. His recognised strengths include professional negligence, insurance, breach of contract and construction disputes. "He is excellent at keeping everyone motivated in multiparty actions," say interviewees.

CEDR Solve

Commentators endorse Carroll as a "no-nonsense" mediator who "brings a depth of legal knowledge and an eye for detail to complex disputes." Recently, she has handled numerous cases arising from the financial crisis, such as inter-bank disputes and partnership failures. Carroll earns particular praise for the energy she brings to mediations, with one solicitor noting: "She settled the unsettlable."

Clyde & Co LLP

Andrewartha is singled out as a "heavyweight" mediator and continues to impress interviewees with her "calm but steely" approach to big-ticket disputes. Her core expertise lies in the insurance and reinsurance sector, where she also has an impressive litigation practice. Other notable strengths include banking, energy and construction cases.

Core Solutions Group Ltd

Sturrock has played a significant role in pioneering the use of mediation in Scotland. His practice extends throughout the UK market, with sources praising his "ability to win the participants' trust." He has huge experience both as a mediator and as a coach, and has advised on commercial, public sector and professional services disputes.

In Place of Strife, The Mediation Chambers

Lang moves up the rankings this year following widespread praise for his "quick understanding of the parties' aims and great ability to find common ground." Whilst he is best known for mediating IT, technology and IP disputes, his practice covers the full range of commercial cases.

CEDR Solve

"An astute mediator who quickly gets to the heart of the matter," Mackie is a leading figure in the field and was awarded a CBE for his services to mediation in 2010. Interviewees highlight his "careful, considered and unobtrusive" approach to complex commercial and multiparty regulatory disputes.

Tooks Chambers

Kershen is an "instinctive mediator" with experience across professional negligence, finance and IP disputes, amongst others. He attracts particular praise for his mediation training programmes.

In Place of Strife, The Mediation Chambers

Jackson-Stops "brings an incredible amount of energy and enthusiasm to mediations." Formerly a chartered surveyor, he sets himself apart with his strong commercial outlook and "quick grasp of both legal and factual points, particularly in property disputes." Other areas of expertise include commercial contracts and professional negligence. Sources say: "He understands the dynamics and looks not only at the moving parts between those involved, but also at a structured way forward."

Independent Mediators

"Dedicated, calm and gently persuasive," Lomas "has the necessary gravitas for difficult disputes whilst also remaining approachable to the parties." His practice combines both commercial and common law disputes, from professional liability to personal injury. "He quickly understands the complexities of a case, narrows the issues and arrives at a resolution," say sources.

Independent Mediators

Commentators assert that this "phenomenal" mediator is" undoubtedly top-echelon." With an "excellent strike rate," Kallipetis is a firm favourite for a wide range of matters. He regularly handles high-value commercial, employment and insurance matters, and is increasingly working with local government and public authorities. "He is patient, persistent and has an excellent grasp of the technical issues," say interviewees.

Independent Mediators

Pryor is "persistent but not pushy," bringing "a nice light touch and a good sense of humour" to mediations. He focuses on commercial disputes across numerous sectors, including banking, professional negligence, insurance and reinsurance.

Independent Mediators

Commercial mediator Howell-Richardson "oozes charm and diplomacy" and continues to attract high praise from interviewees. One source notes: "He is not just a messenger between the parties but knows which buttons to push to reach a settlement." Others add: "He neutralises animosities and presents alternative solutions." In the past year, he has handled numerous international mediations alongside his domestic practice.

Quentin Smith - Sole Practitioner

Interviewees are full of praise for this "charismatic, personable and down-to-earth" mediator. With an "agile mind," Smith "understands the issues and knows how to adapt to different personalities to get the best from them." His noted areas of expertise include complex commercial litigation, personal injury and professional negligence disputes.

Brick Court Chambers

Ruttle has built upon his strong background as a commercial barrister to develop a significant shipping, insurance and reinsurance mediation practice. Sources say that "he gets to the heart of a problem quickly" and "remains affable whilst also challenging the parties' positions and expectations."

Brick Court Chambers

Wood receives high praise for his "absolutely charming, commercial and engaging" approach. Solicitors note his "ability to deal with almost any type of dispute," with one interviewee stating: "You know he is a safe pair of hands if there are complex issues involved."

In Place of Strife, The Mediation Chambers

Moving up in this year's rankings, Llewelyn-Evans is singled out as a "meticulously impartial" mediator who "sorts and sieves issues with a strong commercial outlook." His broad practice spans partnership, shareholder and franchising disputes as well as construction, professional negligence and banking cases.

In Place of Strife, The Mediation Chambers

Clients say Bucklow is "a breath of fresh air" in mediations, as she adopts a "conversational style" and "uses her charisma" to get parties to come to a resolution. She earns further praise for her commercial acumen, and handles a wide array of disputes across numerous industry sectors.

CEDR Solve

"Authoritative but courteous," Allen is a firm favourite for personal injury and clinical negligence mediations. Instructing solicitors are full of praise for his "smoothing manner in multiparty cases," noting that he "effectively works his way through seemingly irresolvable disputes."

Anthony Glaister - Sole Practitioner

Sources consider Glaister to be a "good all-rounder," citing his "user-friendliness and hands-on style" as key strengths. He mediates a range of matters, and has handled agricultural, building, partnership, property and contractual disputes in the last year alone.

Squire Sanders

Middleton-Smith is described as "a calming presence" who "keeps going when others may give up and does so with courtesy." He earns further praise for his "excellent attention to detail and commercial outlook," and has particular experience in the arts, media and entertainment, and sports sectors.

Colin David Russ LLP

Russ is promoted in the rankings this year, with sources noting his "exceptionally focused and thorough" approach to commercial mediations. He is highly sought after, handling 86 mediations in 2010, and has particular expertise in property, construction and professional negligence disputes.

David Cornes - Sole Practitioner

The "personable" Cornes "takes the heat out of acrimonious disputes with his calm and measured approach." He is a construction specialist and earns praise not only for his "good grasp of the technical issues" but also for his "excellent communication and administration prior to the mediation."

David Richbell Partnership

Richbell is both a "fantastic trainer" and a "brilliant non-lawyer mediator," according to interviewees. Formerly a chartered surveyor, he excels in high-value, multiparty construction, property and engineering disputes. 

CEDR Solve

Maynard is a "first port of call" for mediating employment disputes involving particular emotional issues alongside monetary concerns. Interviewees find her "hugely empathetic" and "able to address tricky situations with great deftness."

Heather Allen - CEDR Solve Direct mediator

Allen is said to be "enthusiastic and tireless in the pursuit of settlements." She has particular experience in dealing with power imbalance, such as in complex employment or inheritance disputes. In assessing her approach, sources highlight her "calm, open and available" manner.

Independent Mediators

Lloyd-Jones is highly regarded for his professional negligence expertise, while also gaining recognition for his work on contentious inheritance matters. Sources say: "He is astute to the unspoken and will get to the issues without it feeling forced."

Lupton Fawcett LLP

Interviewees are quick to acknowledge Houghton's "common sense and straightforward approach" to a wide range of commercial mediations. He "cuts to the chase" and "has an ability to acquire the confidence of parties and resolve seemingly intractable disputes." 

Littleton Chambers

Sources say Bartle "has the gravitas to deal with large personalities" and is "really prepared to listen." His practice encompasses professional negligence, commercial and employment matters. "He managed to turn around a situation where daggers were drawn and make it a success," notes one interviewee.

Brick Court Chambers

Willis is a hugely experienced mediator and a popular choice for "blockbuster matters where heads might need banging together!" He is regularly instructed on multi-jurisdictional cases stemming from commercial, business and regulatory disputes. 

Freeth Cartwright LLP

The "calm and measured" Powell "diffuses high tensions" with his "strong commercial practicality and sensitivity" in mediations. He has handled over 25 mediations in the last year, from partnership and asset finance disputes to professional negligence and property claims.

Spenser Underhill Newmark LLP

"Immaculately prepared, commercially aware and a creative thinker," Newmark possesses a diverse skill set and has established an excellent mediation practice. He is a go-to for a wide array of commercial disputes, both domestically and internationally.

Littleton Chambers

"Never flummoxed or flustered," Manning is "a calming presence and a voice of reason" in complex mediations. He is hugely experienced in a broad range of commercial and business law disputes. "In a nutshell, he's the sort of guy prepared to go the extra mile," says one interviewee.

Morton Fraser

Hossack is "tenacious and an excellent listener," ensuring he "quickly gains the trust of parties." His particular emphasis is on employment-related disputes, but he has experience covering an array of commercial disputes.

3 Verulam Buildings

Birch has a broad commercial practice and regularly handles cases with an international element, such as conflict of laws and jurisdictional disputes. Clients admire her ability to "grapple with the issues head on."

Serle Court

Sources say Jones "exercises her considerable intelligence" in mediations and is "particularly well suited to large commercial disputes." Recent work includes a three-way professional negligence case arising out of tax advice.

CEDR Solve

With "excellent interpersonal skills," Colquhoun "cuts through people's bias to address the crux of the matter at hand" and is "absolutely committed to reaching a conclusion." She is a firm favourite for mediating employment and workplace disputes across a range of sectors.

Gateley

Sheffield-based Khoshnaw has established a strong regional practice centred on contract, negligence and breach of statutory duty disputes. He elicits praise for the "tremendous energy" he brings to mediations, with one instructing solicitor noting: "He worked really hard all day and was determined to find a resolution."

King & Spalding International LLP

Player is a "pragmatic and solution-driven" mediator who "understands the wider commercial ramifications for clients." She has a depth of knowledge in the IT, communications and media and entertainment industries, and also handles banking and finance, professional negligence and projects disputes.

Stephenson Harwood

Fordham combines "credibility and gravitas" with a "sensible, pragmatic approach," making him a "sound choice when faced with a tough dispute to resolve." As with his litigation practice, his mediation work focuses on commercial disputes. He has particular experience in the financial services industry.

11 Stone Buildings

Sources say Arkush "comes up with solutions others wouldn't have thought of, often enabling a clean-break scenario." He is regularly instructed on high-value matters, with recent mediations including a wrongful dismissal claim and an inheritance dispute.

TLT LLP

With an "understated and non-confrontational manner," Gwyther is both "persuasive and commercial" when conducting mediations. He is experienced in both commercial and family property mediations, and has recently handled mediations in the insurance, telecommunications and banking sectors.

Liz Rivers - Sole Practitioner

The "patient and persistent" Rivers is excellent at dealing with sensitive disputes, most notably in cases of organisational conflict. Sources particularly commend her flexibility, noting that "she doesn't come in with a predetermined style, but is willing to take her cue from the parties themselves."

Manleys

Manley is "hands-on, approachable and quickly gets his head around contractual details." He is sought after by parties in the media and entertainment industry, including newspapers, TV and film companies, football clubs, players, managers and actors.

Atkin Chambers

Construction specialist Shane has a strong international practice, having handled disputes in the USA, UK, Hong Kong, Singapore, Canada and Australia. He impresses sources with his "ability to see the big picture."  

Core Solutions Group Ltd

Edinburgh-based Lyall is one of Scotland's leading mediators. Her excellent client-handling skills make her a popular choice for a range of disputes, including commercial contracts, use of land, personal injury and employment.

Kings Chambers

An "incredibly patient" mediator, Johnson "puts people at ease very quickly and is not afraid to tackle big issues from the start." Sources further commend the "broad commercial ability" he brings to a wide range of disputes, from banking and intellectual property to competition and fraud.

3 Serjeants' Inn

Although less active than some, Naughton remains "an impressive mediator" with huge experience across a range of disputes. Notable strengths include engineering and construction, insurance, professional negligence and IP disputes.

Keating Chambers

Jackson is "well prepared and clearly aware of the issues." Her practice focuses on construction and engineering contractual disputes and professional negligence cases. Sources describe her approach as "incredibly flexible, enabling parties to be brought together in difficult circumstances."

Lamb Chambers

Shaw brings an "effective, laid-back style" to mediations. Interviewees praise his "disarming charm" and "ability to both listen to and challenge the parties' positions." His practice centres on landlord and tenant, property, mortgage and general commercial disputes.

Stuart Chapman - Independent Mediator

Described as "quietly effective," Chapman wins the confidence of instructing solicitors with his "proactive, calm and unflappable" style. He has quickly established a broad practice, having handled more than 100 claims since 2008. Areas of expertise include corporate and shareholder, employment and pensions and construction and engineering disputes.

A J Fraley Ltd

Fraley is highly regarded by market sources who pinpoint his pragmatism and solution-oriented approach. His broad practice encompasses professional negligence, personal injury, construction, agriculture and inheritance disputes, amongst others.

Wragge & Co LLP

Manning Cox "combines gravitas with a calm personality" to handle a wide range of commercial disputes. His recent work includes a property dispute, a joint venture fallout and a franchise claim, among others. 

CEDR Solve

The "amenable" Sheridan "quickly establishes trust in mediations" and "doesn't let the parties go off on tangents." She regularly handles employment disputes across a wide range of sectors, including banking, insurance, charities and IT.

Blackstone Chambers

"Authoritative and wise," Charles Flint QC of Blackstone Chambers is an "effective and impressive" presence in mediations. He focuses on financial services and banking mediation, and sources describe him as a "tremendous" character who "sees things clearly" and "gets to the point." He is particularly "great for esoteric, intellectual" problems.

In Place of Strife, The Mediation Chambers

Fitton is an experienced mediator credited with a "methodical, informal and amiable style." He has recently handled a commercial banking dispute, a solicitors' negligence case and a class action. "He is friendly yet robust," say interviewees.

20 Essex Street

Alongside his well-established practice as a barrister and arbitrator, Owen is called upon to mediate shipping, insurance, energy and international trade disputes. Clients describe him as "immensely hard working and very user-friendly."

Blake Lapthorn

Miles is a "sensible mediator with an excellent understanding of construction matters." In the past year, he has handled a professional negligence claim concerning a construction professional and a dispute between contractors and employers concerning payment.

Thirty Nine Essex Street

Commercial mediator Glasgow enters the rankings following widespread praise for his down-to-earth nature and ease with clients. "You can take him a specialised and complex problem and he will get to the heart of it," say interviewees.

In Place of Strife, The Mediation Chambers

Wade is an employment lawyer who has developed a noteworthy mediation practice covering a range of disputes, including partnership, shareholder, contract, whistle-blowing, severance and discrimination issues.

Keating Chambers

Marrin brings his experience as a leading barrister to bear on mediations in the construction, engineering, energy and technology sectors. Sources consider his "measured approach and excellent management skills" to be notable strengths.

Wilberforce Chambers

Seitler has a broad mediation practice, with a particular focus on commercial, property and professional negligence disputes. Praised for his proactive and facilitative approach, "he encourages parties to think realistically and identify the risks of litigation."

Kate Jackson - Sole Practitioner

Clients endorse Jackson's "excellent organisational skills," noting that she "takes the time in advance to understand the issues and identify where possible concessions can be made." She focuses on commercial mediations, from banking, commerce and insolvency to IP, real estate and employment disputes.

DAC Beachcroft LLP

Brocklebank has developed a substantial practice and is singled out for her ability to handle significant disputes. She specialises in personal injury work and also receives instructions for landlord and tenant and contractual disputes.

In Place of Strife, The Mediation Chambers

Linnell earns praise for his "excellent commercial acumen" and "completely objective and outcome-driven" approach. He maintains a broad practice, having handled disputes across the financial services, health, property and retail sectors.

Leathes Prior

Norwich-based Plowman has established an excellent reputation in East Anglia, and is increasingly instructed on national mandates. His areas of expertise include general commercial, property and boundary disputes as well as employment matters. Clients are impressed by his "gentle manner" and "ability to listen."

XXIV Old Buildings

With his "no-nonsense and straightforward" style, King is "effective at identifying any reasonable ground between disparate parties." He is best known for his work on complex trust disputes, and also regularly handles partnership disputes.

McCormicks

Goodrum has quickly established a strong reputation for his work on complex employment mediations. Commentators commend his "down-to-earth, businesslike and flexible" approach, with one interviewee stating: "He pulled out all the stops to make himself available." Other areas of expertise include clinical negligence, personal injury and commercial contract disputes.

B P Collins LLP

Interviewees describe Hallchurch as a "great host" for commercial mediations. He elicits particular praise for his "tough but fair" approach and "sensitivity to power imbalances between parties." Recent work includes a probate dispute and a professional negligence case.

Patrick Walker - Sole Practitioner

"Brisk, efficient and friendly," Walker continues to impress with his "ability to navigate multiparty mediations." He has "in-depth technical knowledge" of property disputes, and also handles solicitor negligence, commercial contract default and loan agreement cases.

Littleton Chambers

Price has developed an excellent mediation practice alongside his work as a barrister. He regularly works on disputes with an international element, from commercial and employment cases to construction, property and defamation matters.

Keating Chambers

Gaitskell is "extremely proactive in his preparation prior to the mediation" and "skilful in bringing intransigent parties to the negotiation table when others might give up." His specialist areas of expertise include construction, energy, IT and IP disputes.

Brethertons LLP

The "outstanding" Jardine "tries to find pragmatic and commercial solutions to problems," acknowledge interviewees. Alongside his work as a litigator, his mediation practice incorporates property, partnership and professional negligence disputes.

Andrew Jackson

Taylor is a "robust mediator" with a "fantastic grasp of the facts." Whilst his core area of expertise is domestic and international shipping mediations, he also handles general commercial disputes. "He conveys a strong degree of wisdom and experience to all the parties involved," say interviewees.

Future Events 

6th June: Chambers USA General Counsel Seminar: New York

7 June 2012: Chambers USA Awards for Excellence 2012, New York




7 June 2012: Launch of Chambers USA 2012


17 September 2012: Chambers Latin America Awards for Excellence 2012, Miami


25 October 2012: Chambers Bar Awards 2012

 

Chambers News

10 May 2012: Chambers Europe Awards for Excellence, Amsterdam