Mediation, Arbitration and Adjudication

Alternative Dispute Resolution Services - from CCRS & IDEAS

Lux Verbi, in association with the legal and dispute resolution team at CCRS & IDEAS are also pleased to offer legal and alterative dispute resolution (ADR) services.

If you are currently in dispute over a contract, employment rights, medical or professional negligence, why not visit or linked page for CCRS & IDEAS. They 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:

 Professional Indemnity Cover    

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

CCRS & IDEAS UK

We can Help: 

• build corporate relations
• 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. 

Our Objectives/Mission:

To promote, for the public benefit, and for the benefit of organisations and businesses, the provision of services directed to mediation, arbitration, adjudication in disputes and conflict between persons, organisations, or groups arising from contract, business relationships, statutory rights, negligence, including medical negligence.

To this end we offer Mediation, Arbitration, Adjudication service by trained and impartial experts or Barrister(s)

We can mediate, arbitrate or adjudicate your Commercial, Employment, Contract, Negligence or other disputes....

For help call now on 020 8364 6036, or visit: www.lux-verbi.org/ccrs; or email: info@lux-verbi.org

In the Southwest call or fax 01278 685 285.

CREATIVE CONFLICT RESOLUTIONS SYSTEMS (CCRS) & IDEAS UK. With Offices in Enfield, Middlesex, and in the Southwest.   

The benefits of mediation outlined in this document are supported by the independent Report of Professor Hazel Genn, Faculty of Laws, University College London. The Study was commissioned by the Lord Chancellor's Department. See The Central London County Court Pilot Mediation Scheme - The Evaluation Report.

For further information, read on.

Our experts can also help resolved disputes abroad. For example in one recent dispute involving a large international oil company and a two other parties was settled amicably for half million $EC.

WHAT IS ADR?

ADR is a term used to describe a form dispute resolution outside of the traditional litigation (i.e. court cased battles). Parties usually enter into ADR voluntarily in an attempt to resolve their dispute(s). The most popular forms of ADR are mediation, negotiation and arbitration. We explain each of these dispute resolution systems on page

Who’s Using Mediation/ADR?

Many more businesses and parties are opening up for mediation. Various forms of ADR are percolating into more industries. It is also being taken up at the High Street level. The Government encouragement, official bodies, such as the Financial Services Authority, and professional ones, such as Lloyd's of London and the Insolvency Practitioners Association, are actively promoting mediation. Moves are also afoot to bring ADR into the Employment Tribunal and County Court systems. In April, the European Commission published a consultation paper on ADR in cross-border civil and commercial cases.

The recent 'Legal Benchmarker' survey, found that the number of in-house lawyers who said mediation would be their preferred method of dispute resolution has increased 50 per cent on the previous year, to 24 per cent, and 54 per cent said they expected their use of mediation to increase. Those who had previously used mediation said they expected the increase to be more like 70 per cent.

Mediation is already firmly established in construction and engineering disputes, and its use is rapidly spreading. Progressive and Business people are starting to see it as a business tool to save massive legal bills, reduce stress on its staff, preserve relationships, and avoiding adverse publicity which usually flow from court battles.

Last year one of the highest-value claims ever, was settled using mediation. The Atlantic Computers dispute ­ relating to British & Commonwealth Holdings' 1988 acquisition of Atlantic Computers and the subsequent collapse of both companies ­ involved eight separate parties and claims of more than £850m. Mediation saved the parties a court trial, which it was estimated would have lasted 12 to 15 months.

Eighty to ninety per cent of disputes settle either on the day of the mediation or soon after. Once you put your dispute before a judge, you've lost control. Mediation also has the advantage of enabling parties to clarify issues and explore the sticking points in their disputes with a view to overcoming or reducing these. And of course nothing disclosed in mediation can be used in any future trial. The process is completely confidential, and the courts uphold this confidentiality.

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;

·         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.

“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))

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.

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

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)

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.

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 & I deas?

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, ACIArb., is a barrister of the Inner Temple, and a trained Mediator, 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 res