Case involving a Team

March 20th, 2009 by kelly

Five new fire-fighters joined the local fire station having undergone significantly different training than that received by the long established existing fire-fighters. The long serving fire-fighters questioned the new recruit’s competence, whilst the newer members felt that they had “earned their spurs” during training and should be accepted and respected as fully qualified fire-fighters. Two of the newer fire-fighters were women and they believed that they were being discriminated against because of their gender. Three grievances had been submitted, one each from the women and one from the husband of one of the women who was also a fire-fighter.

At the second mediation with the whole team involved, each party had the opportunity to explain their own point of view, hear other points or view and gain an understanding of how the situation had arisen. Agreement was reached on a way of working together. This was written down, signed by all present and presented to the Brigade. A review was conducted after there months and all parties confirmed they were happy with the new way of working.

The cost to the fire brigade was £1,500.  Mediation took place over three sessions.

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Manager in dispute with PA

March 20th, 2009 by kelly

Following reorganisation a senior secretary who had worked within the company for 25 years had been allocated to a new senior manager. She and the new manager did not work well together and eventually the secretary became ill, saw her doctor and was diagnosed with clinical depression which he believed was caused by her work.  She remained off work for nearly a year. Her employer wanted to resolve what was becoming a ‘state-mate’ situation with no real signs of a return to work.

Mediation between herself and her manager was suggested by her employer but she was reluctant to try although she did agree to see “what it was about”. After meeting the mediator at her home together with her husband, she decided that she would attend mediation but only is she could be accompanied by her husband and a union representative and that further, she did not have to meet her manager. For his part the manager agreed but did not want anyone to accompany him.

During the shuttle mediation it became clear she found the current job stressful because of the way her manager operated, but felt there would be a loss of status and loss of face if she moved to a different job.  After several hours a plan for her return to work with a different but temporary manager was agreed by herself, her manager and the HR Department. She returned to work immediately following a consultation with her GP.

The cost to the company was £1,000 and the work was completed within a week of referral.

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‘Boom time’ in construction - for dispute resolution firms

March 20th, 2009 by kelly

Dispute settlement company Driver Group reports 43% increase in turnover last year.

Steve Driver, Chief Executive of dispute resolution firm, Driver Group, yesterday said it is ‘boom time’ in the construction sector - for those involved in dispute settlement.

Driver said the boom in the construction disupte settlement sector was reminiscent of that in the late nineties.

Yesterday, the firm announced that revenues at Driver Group rose 43% to £18.1m in the year to 30 September. Underlying pre-tax profit rose from £1.6m to £2.1m.

The firm’s sales in the Middle East doubled to £3.1m. Where activity in the UK residential slowed, it was matched by increased pick-up in the energy and nuclear sector. 

Date: 22 January 2009

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Rise in workplace conflict set to cost businesses billions

March 19th, 2009 by kelly

A recent report Fight, flight or face it, published jointly by OPP and the Chartered Institute of Personnel Development surveyed thousands of employees in nine countries across three continents, in businesses of all sizes and in all sectors. A second survey revealed the opinions of 660 HR professionals in the UK, allowing for a balanced employee/employer view on conflict. According to OPP’s latest research, poorly managed conflicts in the workplace are crippling British business. The average UK employee spends over two hours a week dealing with conflict, which means in total more than 370 million working days were lost last year at a cost to British employers of more than £24 billion.

The research found:

54% of employees want managers to address underlying tensions before they escalate into conflict.
58% of employees who have had relevant training now look for win-win outcomes from a workplace conflict.
In countries where such training is more prevalent, positive outcomes from conflict are far more common.
27% of employees have seen disagreements involving personal attacks or insults.
16% have actually seen conflicts lead to people being fired.

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Advice for Debt Recovery Companies

March 19th, 2009 by kelly

What the credit crunch could mean for your clients and how Mediation can help.

We are, as the media and everybody else says, facing a world in recession where people, governments and businesses are quaking silently, although not without the odd public eruption, about two simply innocuous words Credit Crunch.

As a Debt Recovery Company, you are well aware of the affects this is having on small/medium sized Mediation businesses.  There has been a marked increase in the cost of borrowing for businesses and individuals alike. Business Secretary Peter Mandelson and Britain’s leading Banks pledged a £350m package to help small businesses through the economic slowdown. But we all know in a recession it’s inevitable that some won’t survive.  In such turbulent times disputes and differences occur, many leading to the filing of claims in the Courts.

Your clients will be seeking help and advice and as wallets tighten costly and lengthy litigation may not be the answer, especially where existing client’s accounts need to be retained to sustain and stabilise organic growth within the company. This is the time for commercial common sense. Advisors will have to take appropriate action to protect client’s interest.

Mediation can offer effective and prompt resolutions to the most complicated cases.  With the appointment of a neutral third party to help negotiations, settlements are possible where previously even dialogue had been difficult.  90% of cases settle through mediation.

In this new age of options, Mediation is preferable to litigation. Providing your clients with the right advice and support, firms will build long lasting client relationships ensuring future work.  Which is what where all striving for in these uncertain times.

If you have clients struggling to recover unpaid debts Mediation maybe your answer.  For more information contact DMS.

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Mediation: not just an American fascination

March 19th, 2009 by kelly

Is the process too warm and fuzzy or just misunderstood?

Like counseling, psychotherapy or life coaching, mediation as a means of settling legal battles has been more of an American phenomenon.

For some reason Americans have more fully embraced what UK residents sometimes see as self indulgent nonsense. Is it that Britons aren’t as comfortable expressing their feelings? Or is mediation just misunderstood?

There’s a stronger argument for the latter. Some lawyers, for example, see mediation as a sign of weakness – even with mounting evidence to show it can benefit both parties. There’s also the argument that mediation is irrelevant in personal injury cases because most of these cases are settled before court. But most PI cases still take a long time to settle, and usually only wind up just before they go to court.

More and more, it’s becoming clear that mediation makes sense. Many lawyers are growing frustrated with the traditional justice system, which at times seems time-consuming, conservative and expensive.

By comparison, mediation can keep costs down and settle cases quickly. And by allowing the parties to meet face to face, it humanises the process, often giving both sides better perspective. The claimant – particularly those in personal injury cases – gets a chance to have their voice heard, while the defendant gains more control over costs and gets a chance to test the strength of the claimant’s case.

Mediation, which is also referred to as a form of alternative dispute resolution (ADR), is high on the agenda of the Civil Justice Committee (CJC). At a meeting last month, the CJC made it clear they support ADR and concentrated on how it might be improved.

“Whilst there are inevitably differences within the judiciary and practitioners as to the analysis of the manner and circumstances in which ADR should be used, there is a clear and firm recognition by us (and we believe by the profession in general) of the values of ADR as a significant tool in the dispute resolution process,” it said.

“The discussion to be had therefore is about the stage at which it should be employed, whether consideration of the process should be imposed by the judiciary or requested by one or more of the participants, and whether it should be obligatory.”

The CJC believes that mediation – as opposed to negotiation, which occurs at all stages of the litigation process – should be available at any stage if called for by either party. It also believes there should be judicial involvement so that the process is addressed even if the parties do not independently elect to use it themselves.

So, love it or loathe it, it looks like mediation is here to stay. What form it takes and how it might be enforced remains to be seen.

Dated 18 February 2009

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Employers shy away from workplace mediation

February 1st, 2009 by kelly

Two-thirds of employers have never used mediation to settle workplace disputes, research has found.

Research by law firm Dundas & Wilson (D&W) found only 36% of HR professionals had used the tactic to tackle conflict at work.  “A lot of employment tribunals could be avoided if both sides would sit down and address the issue instead of simply locking horns so early in the process, so it’s disappointing that so few employers consider mediation in the early stages of a dispute,” said Eilidh Wiseman, head of employment law at D&W.

For those who had used mediation, 60% of the 136 respondents said the flexibility of the process was the key advantage. These include the range of options available - compared to a tribunal where outcomes tend to be financial - and the ability to use them at any time in a dispute.

“HR professionals clearly value flexibility, and for mediation to continue to offer full advantage, that level of choice should extend to the mediation marketplace,” Wiseman added.

Failure to tackle bullying in the workplace costs UK employers almost £14bn each year, research has found.

The costs of workplace bullying, a research project by Unite union, also revealed that black, minority and ethnic workers are more likely to be targets and less likely to have a support network.

The report estimated that 33.5 million days were lost by organisations last year alone because of bullying-related absenteeism. Combined with increased turnover statistics and costs to productivity, experts estimate employers are left out of pocket to the tune of £13.75bn.

Cath Speight, Unite acting head of equalities said: “Workers who suffer from bullying, and those who witness it, experience low morale and are more likely to take time off or leave their jobs.

“Employers need to recognise this and take action to combat it.”

The report’s main author, Dr Sabir Giga from the University of Bradford, said: “Employers must develop a zero tolerance to bullying so that all workers are treated with dignity and respect.”

Close to 200,000 employees considered quitting their job and almost 100 million days’ worth of productivity were loss as a result of workplace bullying and harassment.


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Message from Sir Anthony Clarke, Master of the Rolls

January 30th, 2009 by kelly

Insurers must espouse mediation. This was the message from Sir Anthony Clarke, Master of the Rolls, at a recent FOIL debate entitled “what is stopping Personal Injury Mediation?

Sir Anthony was of the view that mediation has a valuable roll to play in most types of case and the Court can and should play a part in promoting mediation without the need for changes to the Civil Procedure Rules (CPR).

Sir Anthony was also firmly of the view that there needs to be a culture change and that mediation needs to be an intrinsic part of the thought process in dispute resolution. He echoed the view expressed earlier in the debate that “only a mad man would not want to settle” and said that it was for liability Insurers to lead the way in pressing for early settlements, possibly by instructing solicitors who were not resistant to independent mediation. Sir Anthony was clearly of the view that liability Insurers hold more of the cards when it comes to influencing the necessary culture change and that if liability Insurers were to say “this is the way it will be” then that is how it will be!

26 January 2009

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Disputes - ‘there is a better way’

October 30th, 2008 by kelly

Mediation and it’s benefits to all universities & higher education establishments.

Universities should each set up a single dedicated centre to deal with all disputes involving staff, students and business partners. That is the advice from a report by the Improving Dispute Resolution taskforce, which has recently been published.

Funded by the Higher Education Funding Council for England, the taskforce was set up to ensure that universities tackle effectively the growing number and range of disputes that can cost universities dearly in terms of time, money and reputation.

“Disputes are a risk factor for the whole institution. They cost money in legal fees; they take up administrative time; they damage reputation,” an early draft of the interim report said.

“In the current world of expanding options and novel opportunities for institutions, for example in forming collaborative arrangements including international partnerships and exploring employer-led curriculum design, the potential for disputes to challenge institutional provision for dealing with them is likely to grow too.”

The report claims that the number of different types of dispute - a student complaint about the ability of a tutor, a disputed sacking - has led to a fragmented approach.

“There is still no unified provision or climate of expectation to help institutions of higher education systematically avoid, and resolve appropriately if they occur, disputes in which system elements are a factor,” it stated.

“A decision would be arrived at, which might be challenged on appeal. But eventually the complainant would ‘win’ or ‘lose’. The assumption should no longer be made that because disputes are usually adversarial in character they need to be resolved adversarially.”

The report, the product of 18 months’ work, advocated alternative dispute resolution, such as mediation. “Such alternatives can result in a resolution which is in the interests of all involved, and they can be cheap and speedily arrived at,” it said.

Project leader Gill Evans argued that most disputes dealt with by universities escalated because of “the compounding of an initial simple problem by bad handling”.

“If you don’t want expensive trouble, look at potential risk management and co-ordinate the way that you deal with it,” Professor Evans said.

Often, alternative dispute resolution was cheaper and simpler. “If you set it up you can often get it (the dispute) sorted within a week instead of 10 years, and you can avoid very expensive legal fees,” she said. “All the university often has to do is to promise to look at its processes so they can say it won’t happen to anybody else.”

Date: October 2008

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Why did they spend £22m on a £6m dispute?

October 30th, 2008 by kelly

Multiplex and Cleveland Bridge completed a hard fought match, in which both teams’ players earned millions. Like many sporting contests it is subject to appeal.

For now, CBUK must repay £6m an adjudicator awarded previously (including interest). Unfortunately, the parties spent £22m in legal and expert’s fees identifying how much this corrective transfer should be.

The judgement blames the parties (as the order that CBUK, despite technically losing, should pay only about £1m of Multiplex’s costs confirms). They, in effect, forced the court to carry out a final account. The judge suggested the partied were made for each other.  Multiplex adopted a “ruthless but lawful” policy of issuing negative interim certificates in breach of their contractual duty to consult, while CBUK withheld design information for two months after they left the site – conduct that was “certainly no less deplorable”.

This is extreme litigation, reminiscent of the BCCI case (costs: £100m) and Equitable Life (£50m), both over claims that were ultimately abandoned. They prompted much soul searching in the commercial court and case management changes are being piloted.

There may be pressure on the Technology and Construction Court to adopt some of these changes (such as restricting pleadings to 25 pages). Some are already in place (for example, limiting disclosure not that that stopped the trial bundle comprising 550 files.

The judge adopted not only established practices to crack the case (such as preliminary issues) but also special post-trial hearings.  It is a shame that after all his improvements to the TCC, this may be Sir Rupert Jackson’s last judgement (he is going to the Court of Appeal).

Parties, lawyers and courts might all learn from this case how to avoid and resolve disputes – mediation must surely be the sensible approach!

Date: October 2008

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