Resources

CCRS & IDEAS UK

Mediation, Arbitration and Adjudication

Alternative Dispute Resolution Services - from CCRS & IDEAS

We provide legal and alterative dispute resolution (ADR) services.

If you are currently in dispute over a contract, employment rights, medical or professional negligence, why not find out more about us and how we can help. We offer mediation, arbitration and adjudication services, and in addition to legal assistance in several areas. All of our legal or ADR services are provided by trained and impartial experts or barristers.

We have the following insurance cover:

Full Professional Indemnity Cover

Please contact us at Philmoore@cwcom.net or ideas@eurobell.co.uk

Below you will find full details of the various ADR

We can Help:

people in conflict
solve problems and disputes
people who want to negotiate settlements using an independent third party
arbitrate; mediate and adjudicate disputes
restore relationships

We provide ADR to government departments, corporations, small businesses and individuals in dispute. Our experts have either worked with or in local government in various capacities. Our experts have helped resolved long running disputes in the UK and abroad.

In a number of UK employment and housing cases we negotiated settlements involving sums of between £1900 and £60,000 – to the satisfaction the parties in all cases. Litigation would have costs each side far more in money, time, energy, relationships, and confidentiality. Litigation is also something of a gamble.

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Why you should Use Our ADR Systems

Anyone who has ever been involved in the process of resolving a dispute through litigation can tell you, it is a long, drawn out, stressful, draining and costly experience. The average lawsuit usually takes over two years to reach trial or settlement. In today’s fast and busy world only those with time on their hands or who are willing to give larges sums of money to lawyers should rush into to litigation. Fortunately there are other methods available for resolving civil, business, family, interpersonal and community disputes. Ever thought about using a professional independent negotiator or dispute resolution provider? Well, one of our ADR systems could be the answer.

Our services focus on conflict, its management and means of resolution without going to court. Our dispute resolution systems are suitable for resolving dispute or conflict within the Church organisations, local Councils, Committees, the workplace and for those involved contractual or other legal disputes.

SUCCESS IN MEDIATION

93% of all mediations are settled there and then.

Many of the remaining 7% are settled later, the mediation having helped narrowed the issues in dispute

Of every 100 writs issued in the English High Court, only 3 come to trial. The money wasted before settlement is staggering.

According to one US survey of 142 large companies, it was estimated that these companies saved around $100 million in legal costs in one year alone (1992), by those using ADR.

IMPORTANCE OF CONFIDENTIALITY

Mediation is held in private.

Our mediator destroys the notes at the end, and cannot be called as a witness.

All mediation is "Without Prejudice". This means that what you say in mediation cannot be used in any court or arbitration proceedings unless a contract is made in relation to the outcome of the mediation.

Just to remind you of the benefits and advantage of ADR. Savings in cost, emotional energy and time are the dominant reasons, but there are other significant reasons, such as:

· preservation of business or other relationships;

· the process can be put in place quickly;

· process usually takes only a few days;

· simple and easy procedures agreed by the parties;

· complete confidentiality;

· process non-binding; the outcome is within the control of the parties;

· high level of satisfaction of the parties; return to top

· empowerment of parties to make their own agreement

· you may get an apology, which you cannot get in court or arbitration;

· you can explore conflict resolutions theories and methods to help maintain the agreement and prevent future conflicts, whether or not connected to the dispute in question;

· the parties have an opportunity to understand each other’s views in a safe and respectful environment.

The Importance of Using ADR in today’s legal climate

Recent Court Cases on the Importance of Using ADR: Cowl v Plymouth City Council

In the leading case of Cowl v Plymouth City Council (14 December 2001) Court of Appeal, Lord Woolf CJ, Mummery and Buxton LJJ, held:

“The courts should ... make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. The legal aid authorities should co-operate in support of this approach.

“To achieve this .…. the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute. If litigation is necessary the courts should deter the parties from adopting an unnecessarily confrontational approach to the litigation. If this had happened in this case many thousands of pounds in costs could have been saved and considerable stress to the parties could have been avoided.

“The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress....

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“It is indeed unfortunate that..... instead of the parties focussing on the future they insisted on arguing about what had occurred in the past.

“Without the need for the vast costs which must have been incurred in this case…, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible.

“This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. If they cannot resolve the whole of the dispute by the use of the complaints procedure they should resolve the dispute so far as is practicable without involving litigation."

From the extracts of the above judgment the Court of Appeal has now made very clear how it will view of the failure to use ADR. It will not be too long before costs sanctions are imposed on parties or a party who failed to consider or use ADR. This should be an important consideration for parties who are entrenching themselves and refuse to negotiate or mediate.

In yet another case Dunnett v Railtrack plc (in railway administration) (22 February 2002), the Court of Appeal, Brooke, Robert Walker and Sedley, LJJ, emphasised the costs sanctions that are likely to follow a party’s blunt refusal to consider ADR.

In this case, the Claimant appealed against the original judgment. At the hearing at which permission to appeal was granted the court told the parties that they should attempt alternative dispute resolution. The defendant simply refused to consider ADR and the matter proceeded to the hearing of the substantive appeal. The Claimant’s appeal was dismissed, that is the Defendant (Railtrack plc) won but was not allowed to recover their legal costs. Such is the new importance the courts are placing on the failure to use of ADR.

"CPR 1.4 states that the court should further the overriding objective of the CPR by, inter alia, encouraging the parties to use ADR. Furthermore, CPR 1.3 stated that the parties were required to help the court in furthering the overriding objective. Parties and their lawyers should, therefore, ensure that they are aware that it was one of their duties to fully consider ADR, especially when the court had suggested it, and not merely to flatly turn it down. To flatly turn down ADR could place the party doing so at risk of adverse consequences in costs. In the instant case, given that the defendant's refusal to consider ADR had occurred prior to the costs of the appeal having been incurred, no order as to costs would be made in the appeal."

Residential Landlord-Tenant Mediation

Residential landlord-tenant cases can benefit form our mediation systems in resolving issues such as unlawful evictions, rent arrears, disrepair, un-tenant-like use of premises, nuisance, harassment, etc. Parties will be encouraged to work out payment plans that allow the tenant to stay on the property or to jointly work out a time-line for the tenant to vacate the premises or to explore various other options available.

Employment disputes

Earlier in 2002 the DTI published an extensive report comprising 121 pages following a survey of Employment Tribunal and other tribunal users in 2,700 cases (Findings from the 1998 Survey of Employment Tribunal Applications (Surveys of Applicants and Employers)) return to top

The Survey found that:

5% of Applicants had made previous applications to a tribunal.
solicitors were consulted (for advice, albeit not necessarily representation) by 63% of employers and 49% of employees;
62% of employees who settled their cases said they definitely or probably would not have settled without ADR being introduced in the dispute;
almost two-thirds of employees report stress as a result of their claim, and 16% of employees withdrew their case because of stress;
Half of all applicants reported spending longer than 20 hours of their own time on the case (the mean time spent was 42 hours).
Half of all employers said that directors and senior managers had spent 16 hours or less on the case. The mean time spent was 31 hours, with six per cent reporting more than 100 hours of senior management time. The mean amount of other staff time was 12 hours.
Discrimination cases absorb most management time (mean of 50 hours), compared to 15 hours for Wages Act cases.
Over a third of employers reported incurring legal costs for advice and/or representation. The mean legal cost across all employers – including those who did not bear costs or were not sure if they had – was just under £800.
Again, discrimination cases were most costly (mean of over £1,800).
76 per cent of employers said the Tribunal application had not led to non-financial costs. Where adverse effects were mentioned, the most common effect identified was the stress to staff (14 per cent), together with damage to their reputation (seven per cent) and to workplace relations (five per cent).
4% of employers have a policy of always going to a hearing, irrespective of costs or merits;

Interestingly, public sector employees:

bring over double the number of discrimination claims as private sector employees [the costs to the public purse in defending these claims is enormous];
are more likely to withdraw their cases altogether;
are less likely to settle their cases; and,

are less likely to succeed at a full hearing that a private sector employee - still the costs to the public employer, and to a lesser extent employee, are huge and unrecoverable.

Early intervention

Remember early intervention can help the parties from becoming too entrenched, making resolution of the dispute more difficult.

The Evaluation Report on the Central London County Court Pilot Mediation Scheme, set up by the Lord Chancellors Department, showed that the "overwhelming motivation for mediation" by those who used the scheme, was to save time and legal costs. return to top

ACAS

A word about ACAS from the DTI Survey:

“ACAS Officers have a statutory duty to promote a settlement through conciliation. In this capacity they provide information on the options to both parties and pass information between them; including details of any offers of settlement. … Their duty is simply to try and promote a settlement through conciliation. In the DTI Survey applicants who had direct contact with the ACAS Officer were asked about the effectiveness of the ACAS Officer’s intervention. Asked whether they were in a better or worse position to make the right decision following the intervention of the ACAS Officer, 52 per cent said that they were in a better position to make the right decision.

“However, 40 per cent said that the intervention of the ACAS Officer made no difference. Seven per cent said that the intervention left them in a worse position in deciding how to proceed with the case.

“Applicants who had direct contact with the ACAS Officer were also asked about the extent they could trust the ACAS Officer. Fifty-four per cent of applicants said that they felt they could trust the ACAS Officer ‘a lot’, while 27 per cent felt they could trust the ACAS Officer ‘up to a point’. Fifteen percent said that they could trust him/her ‘not very far’…

“Employers who were in direct contact with ACAS were asked a series of questions to evaluate the effectiveness of ACAS intervention. Asked whether they were in a better or worse position to make the right decision as to how to go ahead, half said ‘yes’. However, 40 per cent said it had made ‘no difference’, while four per cent said they were in a worse position.”

From the above DTI findings it is clear that ACAS is not always the best body to resolve employment disputes, especially where there is any concern by one or other parties about impartiality, or where a government department is a party to the dispute (employees might see ACAS as another government department). Equally ACAS is only involved when there is case before the courts or tribunals. So the service is of no use to those who have not yet issued legal proceedings, when the whole aim of ADR is to keep parties out of court in the first place.

Comparisons with the USA

As in so many other areas Britain seems to lag behind the North America in this areas. In the USA a recent survey of ADR use among 1,000 of the largest U.S. corporations, researchers found that:

• 90% view mediation as a cost-saving measure

• 88% used mediation in the past 3 years

• 79% used arbitration in the past 3 years

• most litigate first and then move to ADR or litigate only in appropriate cases, and then use ADR for all others

• there was widespread use of mediation and arbitration in commercial and employment disputes

• 81% say mediation is a more satisfactory process than litigation

• 59% say mediation preserves good relationships

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In the US support for ADR is not limited to the private sector. Why? Because it works! Although we not believe that ADR is a panacea in all cases, it is clear and unquestionable that mediation and other forms of ADR are viable alternatives in many cases. This is one of the reasons the Government and the Lord Chancellor are requiring all public bodies and the Judiciary to supports and encourage ADR.

To recap the benefits to you in using ADR are:

• huge savings litigation/legal costs

• speedier resolution of your dispute(s)

• preservation of business relationships

• creative resolutions to your problems

• a means of empowering those who prefer

• ensure that there is less of an emotional toll on you and other parties

• helps the courts, since if more cases are resolved by ADR, judges have more time to work on those cases that can only be resolved by judicial attention (judges will look favourable on parties who have genuinely attempted ADR)

• significantly, unlike litigation, preserves your privacy and confidentiality (compared to the court, which is open to the public)

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How To Stay Out Of Court

If you are involved in a lawsuit, your lawyer has probably already talked to you about ADR. The Civil Procedure Rules 1998 says that parties should reasonably pursue other means to resolve disputes. There usually a cooling of period suggested by the court after legal proceeding have commenced. Consequently it is important you ask your lawyer the right question when you talk together about ADR and your case.

You should or could also ask your lawyer about including ADR provisions in future contracts or changing current contracts, so that you can stay out of court. One way to do this is to include ADR provisions in ALL your contracts. For examples the contract could include a clause requiring the parties to: negotiate with each other before filing an action in court or mediate before going to court or attend non-binding arbitration or a binding arbitration. The only limitation on including such clauses in a contract is the parties’ willingness to explore options.

Why negotiate?

Some 90% to 95% of cases settle before trial using some form of negotiation. Agreements can be structured so as to require parties to negotiate as a precondition to using to litigation. In such agreements, is only after a good-faith attempt to negotiate has failed that litigation will be allowed by the courts to proceed. Where negotiation is used at the outset of a dispute, it is frequently successful, and most frequently involves less cost than litigation.

The most widely used alternative to litigation is negotiation. We all use negotiation techniques from time to time, whether we negotiate the terms of a business contract, haggle over who pays for the drink or who washes the dishes or what TV program we what with our mates we. In negotiation each side retains two important things: control over the process and the outcome. But what if you cannot resolve the dispute by direct negotiation? Do simple walk away start to fight or give in? That depends on what the issues means to you, and how you want to be treated in any future dispute with that other person.

What is Mediation?

In case you still do not fully understand what it is, mediation is a process in which the parties appoint a neutral third-party to assist them in attempting to settle their dispute. The neutral third-party does not make a decision and the parties may terminate the process at any time. The whole process is confidential and without prejudice to either party’s right to go to court at a later stage. However, once the parties are encouraged to seek independent legal advice, and a voluntary settlement is achieved, the mediated agreement may become binding. Mediation will certainly involve less cost than litigation.

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What is arbitration?

In arbitration parties submit their evidence to an impartial, neutral arbitrator (or panel of arbitrators) whose decision is final and enforceable in court. Arbitration is quick (usually taking 3-4 months from inception), and informal with relaxed rules of evidence, which can be agreed on by the parties. Further, unlike litigation it is private.

Arbitration is even less used and understood than mediation. Arbitration involves adjudication by a third-party neutral. While it is possible to structure arbitration to be non-binding, most arbitrations are designed to be binding. Arbitration will in most instances arise by agreement of the parties, either arising out of a pre-existing agreement or based on the specific terms of an arbitration agreement entered into after the dispute has arisen. Unless otherwise agreed, the terms of the applicable Arbitration Act 1996 will govern.

What is the difference between mediation and arbitration?

The single most important distinction therefore is that the decision of the arbitrator, unless otherwise agreed, will be binding, and the decision may be entered on the court record.

Why should you use CCRS & IDEAS?

At CCRS & IDEAS we have the advantage of trained dispute resolvers who are legally trained or experienced in housing, contract, employment, and public law principles and processes involved from beginning to end. We still use all the other advantages of conventional ADR. And it’s all confidential.

Dispute Resolvers’ Profile:

Philton Moore, LL.B, Q.D.R., MCIArb., is a barrister of the Inner Temple, and a trained Mediator, Arbitrator, and Adjudicator on the Independent Housing Ombudsman Scheme, an author and legal writer, and a member of the Chartered Institute of Arbitrators.

Clive Powell, QDR, is a Qualified Dispute Resolver with the Academy of Experts, Chairman of a Strategic Health Authority Review Panel and former Civil Servant specialising in disability issues relating to employment and access. He has several years experience dealing with judicial matters.

We also have several other Associates trained in dispute resolving.

Likely Success of ADR in your case? return to top

In any conflict, or dispute ADR can only be successful if the parties genuinely wish to achieve a settlement. Cases in which ADR will not be suitable are:

1. cases where the parties wish to establish a precedent;

2. where an important point of law exists upon which the parties wish to have a formal judicial ruling;

3. where a court order is required to enforce a previous court judgment;

4. where extraordinary court relief is sought, such as a declaratory judgment or an injunction.

In cases where the parties wish for a legally binding resolution we recommend using our arbitration service.

Why are the various forms of dispute resolution like ADR or ADR suggested to clients more often by lawyers?

Simple. Lawyers still understandably view mediation as "loss of business. Some lawyers are reluctant to consider negotiation, or any other ADR process, because they fear that to do so suggests to the other side a weakness in their case. Inevitable ADR will take some work from lawyers, but only if they do not offer such services themselves. Litigation is a lengthy, uncertain and very costly process when compared to ADR. Consequently, only cases that cannot be resolved out of court should be litigated.

Of course not all disputes are suitable for ADR, but there is no reason why most disputes should not be referred to ADR before considering or even after litigation has been commenced. No, it’s not a sign of weakness to ask your opponent to go to ADR.

The Evaluation Report on the Central London County Court Pilot Mediation Scheme, set up by the Lord Chancellors Department, showed that the "few ...solicitors had any experience of mediation or any knowledge of the process.

Nevertheless, "the vast majority of litigants and solicitors made positive assessments of the mediation process", once they had an experience of it. The Report also noted that confidence of both parties and their solicitors "was generally high" **

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Fear

There is a genuine fear on the part of some lawyers that the use of ADR is a threat to their litigation practices. But futuristic and some client centred lawyers are demonstrating a recognition of this reality by undertaking training in ADR and establishing ADR sections within their firms.

As Alternative Dispute Resolution increases in prominence in the UK, many organizations are realizing that there are processes other than litigation that they can use to resolve disputes. They are also finding that traditional methods of resolving internal conflicts are not necessarily the most effective or satisfactory. As a result Creative Conflict Resolutions Systems (CCRS) & IDEAS was formed to design conflict management systems for organizations and individuals so that when disputes arise, they can be resolved through the most appropriate dispute resolution processes. CCRS & IDEAS consultants work with managers, in-house lawyers, human resource personnel and others in organizations to determine, before conflicts arise, which processes should be made available to employees, customers and those with whom the organizations are in dispute, as conflict occurs.

Sample Arbitration Clause

All disputes arising out of or in connection with this agreement, or in respect of any defined legal relationship associated therewith or derived from it shall be facilitated by, and finally resolved, pursuant to the Commercial Arbitration Rules of the Chartered Institute of Arbitrators.

Sample Mediation Clause

If the dispute is not resolved by informal negotiation within 28 days (or any mutually agreed extension of time) of the first negotiation meeting between the representatives of the parties or before any legal proceedings are commenced the dispute shall be referred to mediation within 2 weeks from that date (except in every case where an urgent court order or relief is necessary to protect a party’s rights). The rights of either party in respect of legal to limitation periods are to be preserved. That is the limitation period(s) shall stop running at the date the negotiation or mediation request was served, whichever is the earlier.

Sample Negotiation clause

A party may not commence court or tribunal proceedings / arbitration until {28} days after it has made a request to the other side for negotiations. During negotiations the rights of either party in respect of legal to limitation periods are to be preserved. That is the limitation period(s) shall stop running at the date the negotiation request was served.

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Release

Unless we are involved in the actual provision of dispute resolution services to you or your organisation and another we do not accept any liability for the use you make of the information in this brochure. In the event that you have a dispute please seek the advice or services of an appropriate dispute resolution professional.

What does arbitration, mediation or negotiation cost?

It depends. But is almost always much cheaper than litigation but in time saved, money and stress.

The main expense is the arbitrator's or mediator’s fees. Both arbitration and mediation are charged on an hourly rate that varies according to location, complexity and, perhaps, the amount in dispute. However, our arbitration or mediation service rates are, generally, £100 and £130/hr, respectively. The fees are payable between the parties and so the cost to each party is either £50 or £75.

If your agreement calls for a 3 or 5 arbitrator panel the fees are, obviously multiplied. Usually or unless specifically agreed by the parties, only one or two dispute resolution professional will be employed in your case.

The hourly charges cover the hearing, the conduct of the preliminary meeting(s), review of materials and, if applicable, taking a view of a site. We also docket our time while writing the award.

Other costs to keep in mind include refreshments, arbitrator or mediator travel and accommodation (if necessary) and the costs of a case reporter/shorthand writer should one be required.

Remember CCRS & IDEAS are here to help you:

save costs legal costs
manage people in conflict
solve problems and disputes
build better corporate relations
facilitate people who want to resolve settlements using an independent third party
preserve relationships
save time and reduce the stress of conflicts
stay out of court

Venue?

Your Place or ours.

If you have 6 or more staff or individuals to train on a particular mediation or between whom negotiation is required, why not get us to come to your place.

Our in-house training or ADR services offer an economical way of providing tailored training or mediation at a time and location to suit you. For further information call

UK
t : +44 (0) 845 869-8214
Lux-Verbi Books, P.O. Box 556, Enfield, Middlesex EN1 3ZJ, UK

USA
t : 1-866-828-5324

or email us at info@luxverbi.org.uk

If you are in the Southwest, why not call or email us at 01278 685 285; or use the above email and web site.

** See The Central London County Court Pilot Mediation Scheme - The Evaluation Report, by Professor Hazel Genn, Faculty of Laws, University College London.

Please take the time to read the Terms and Conditions and Code of Conduct, which is for your benefit and protection.

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