UK commercial mediation market grows 20% – CEDR mediation audit results published

Jan O’Neill
Professional Support Lawyer, London

 

The Centre for Effective Dispute Resolution (CEDR) has released the results of its Mediation Audit 2018, based on a survey of practising mediators in the UK. (The results of parallel surveys of lawyer attitudes to mediation, and of US practitioners’ views, are to be published separately).

The audit is the eighth biennial survey CEDR has conducted in the last 16 years (in conjunction with the Civil Mediation Council).  The 2018 audit received 336 responses from UK mediators.

While it is important to bear in mind the empirical limitations of such reviews based on survey responses from a sample of market participants, the audit does indicate a number of interesting trends in civil and commercial mediation in the UK.  CEDR’s key findings from the responses include: Continue reading

The role of mediation in the resolution of Belt and Road Initiative disputes

China’s Belt and Road Initiative (BRI) has gained huge momentum of late, with governments, companies and lawyers keen to maximise the many opportunities it presents. The resolution of disputes arising from the BRI is no exception. The sheer complexity and scale of BRI projects is prompting a welcome review of dispute resolution processes, with a view to resolving BRI disputes more quickly and amicably, ideally in a confidential and enforcement-friendly environment.
Recent developments suggest that the BRI presents an opportunity for less formal procedures, like mediation, to flourish and enter the mainstream. Indeed, three key BRI jurisdictions – China, Singapore and Hong Kong – have recently promoted mediation in the context of BRI disputes.

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New York state court green-lights mandatory mediation pilot programme

As we previously reported (here), the New York Supreme Court Commercial Division (a Manhattan-based division of the state court of first instance that exclusively hears complex commercial cases) has been considering a proposal for mandatory mediation.

The proposal has now been adopted and the 18 month pilot programme becomes effective on 28 July 2014, at which time one in every five cases filed in the Commercial Division will be subject to mandatory mediation. Continue reading

Automatic referral to mediation in UK County Court Money Claims Centre adopted permanently

We previously reported on the commencement of a pilot scheme at the County Court Money Claims Centre (CCMCC), to test the operation of automatic referrals to mediation for low value claims where the parties have indicated that they agree to mediation.  The CCMCC deals with designated low value money claims and provides a support service to the County Courts.

The pilot scheme, initially planned for 6 months, was subsequently extended to 2 years, through to April 2014.   At its meeting on 6 December 2013, the Civil Procedure Rules Committee (CPRC) considered a report evaluating the effectiveness of the pilot and agreed that the scheme should be made permanent.

That change has now been effected through amendments to the Civil Procedure Rules, principally through a new Rule 26.4A  (which mirrors the provisions for the pilot programme, previously found in Practice Direction 51I).

As previously observed, the key point to note is that there will be no referral to mediation unless all parties have agreed to mediate.  As such, the new rules fall short of mandatory court-annexed mediation.

Mandatory mediation pilot proposed for New York state court

An advisory committee has recommended that the New York Supreme Court (the state court of first instance located in Manhattan) adopt a pilot programme for mandatory mediation in its Commercial Division, which exclusively hears complex commercial cases.

While other New York courts have instituted limited mandatory mediation programmes (such as the Brooklyn programme about which we previously reported, which only applies to transit cases), this proposed programme is the most expansive to be considered to date.   Part of the rationale for proposing mandatory mediation in the Commercial Division is that mediation is underutilised there, and highly congested courts detract from New York’s stature as a desirable place to conduct business in an increasingly competitive global economy. Continue reading

USA: Occupational Safety and Health Administration Announces ADR Pilot Programme for Whistleblower Complaints

The Occupational Safety and Health Administration (OSHA), which is part of the United States Department of Labor, has announced that it is implementing an Alternative Dispute Resolution (ADR) pilot programme for certain whistleblower complaints.   OSHA’s mission is “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” Continue reading

Herbert Smith Freehills hosts Tax ADR Interest Group

The UK’s HM Revenue & Customs (HMRC) is now supporting ADR in the resolution of a wide range of tax disputes. On Monday 22 October Herbert Smith Freehills will host a Tax ADR Interest Group for stakeholders at our offices in London to discuss key recent developments.  Agenda items include the National Audit Office’s report on settling tax disputes, HMRC’s draft governance paper, HMRC’s ADR pilots and guidance, and confidentiality in mediation. Delegates include Edward Troup, the newly appointed HMRC Tax Assurance Commissioner, who will offer his view on resolving tax disputes through ADR.  If you would like further information about this session please contact Rupert Shiers, a partner in the Tax Disputes team in London, and a CEDR accredited mediator.

 

Court of Appeal mediation pilot endorsed in Ghaith v Indesit

The year-long Court of Appeal mediation pilot launched on 2 April 2012 has been endorsed in the recent case of Ghaith v Indesit [2012] EWCA Civ 642.

Under the pilot, unless a judge exceptionally directs otherwise, every personal injury, clinical negligence and contractual claim worth £100,000 or less, and in which permission to appeal has been granted, will automatically be recommended for mediation to CEDR. If the parties agree to mediate, a panel of accredited CAMS mediators will be nominated by CEDR. The selected mediator will bring the parties together to try to reach a settlement, and if this is achieved, the case will not go back to the Court of Appeal.

Mr Ghaith appealed against the dismissal of his £60,000 personal injury claim against his employers, Indesit. In giving permission to appeal, Toulson LJ recommended that the parties utilise mediation (as the case fell within the scope of the pilot). However, Indesit’s insurers rejected this on the grounds that costs already incurred exceeded the amount at stake.

The Court (Longmore, Ward and Patten LJJ) allowed the appeal and remitted the case back to the County Court for the assessment of damages. Longmore LJ firmly rejected Indesit’s excuse for rejecting mediation, commenting: “This is an inadequate response to the Court’s encouragement of mediation, since a full day in this Court will inevitably result in a substantial increase in costs.” Since the appeal in Ghaith was allowed, the question of costs sanctions for failure to mediate did not arise. However, given the degree of judicial encouragement, refusal to mediate by a successful party would likely  be clear evidence of unreasonableness, attracting cost sanctions.

Regional Mediation Training Scheme for employment disputes launched in Cambridge and Manchester

On 21 June 2012 the Department for Business Innovation and Skills (BIS) announced that Consensio, a member of the Civil Mediation Council (CMC), will conduct training in mediation for employees from a group of 24 small to medium sized enterprises (SMEs) in Cambridge and Manchester. BIS has determined that both Manchester and Cambridge have a suitable concentration of SMEs and comparable levels of economic activity against their pre-defined control regions, to support the pilot networks. Continue reading