The drive to encourage “out of court” settlements through alternative dispute resolution (ADR) and specifically mediation has really gained pace in the UK since the “Woolf reforms.” These were fairly fundamental changes to the litigation process based on recommendations made by Lord Woolf, a senior British judge, in his report on how to make dispute resolution more efficient. This led to the Civil Procedure Rules (CPR), requiring the parties and their lawyers to pro-actively liaise and take practical steps to settle disputes before trial. This approach of “front-loading’ cases to enable early settlement inherently involves alternative dispute resolution (ADR) and particularly mediation. As a result, civil and commercial mediation has gained pace in the UK in the decade or so following the Woolf reforms.
Correspondingly, there is increasing judicial support for mediation in British courts, as shown by judgments in which parties winning at trial have nevertheless been penalized in legal costs for having unreasonably refused to mediate before trial. The typical sanction for this is being ordered to pay the loser’s legal costs despite being the winning party in court. (In the UK the loser in court typically pays the winner’s costs). A prominent example of a court imposing such costs consequences for unreasonably refusing to mediate is the case of Dunnet v Railtrack (a Court of Appeal case). According to the recent fifth mediation audit by the UK based Centre for Effective Dispute Resolution (CEDR), the British civil and commercial mediation market consisted of around eight thousand relatively high value mediations last year (up from around six thousand in 2010).
In light of this growth in mediation, our Law, Governance and International Relations Faculty at London Metropolitan University (LMU) has been developing and promoting ADR training programs for several years now. This has included the introduction of a new mediation “elective” course on our “Legal Practice Course” (which provides vocational training for trainee lawyers).
For the last two years we have also entered a student team in an annual national mediation skills competition held in London. This competition, organized by the Worshipful Company of Arbitrators (WCA), involves teams of law and business students mediating complex civil and commercial disputes and deal making scenarios. In these sessions one team member performed the role of client and the other the role of legal counsel. Having won the trophy for “best mediation advocacy” in 2011, we were delighted to win the competition this year. The prize for this was fully expensed entry to the international mediation competition in Paris in February 2012. Organized by the International Chamber of Commerce (ICC), this competition is believed to be the world’s only international competition dedicated exclusively to international commercial mediation and involves mediating complex international scenarios and problems. With sixty-six teams from around the world taking part, numerous training programs conducted by leading international mediators and social events enabling interaction with world class mediators, this competition has been described by William Wood QC (Queen’s Counsel), a renowned mediator in the UK, as “pure dynamite”. We therefore expected this event to be a valuable and exciting experience for our team and we weren’t disappointed.
Boarding the “Eurostar” train in London on Friday 3rd February for Paris, the LMU team began a whirlwind of four mediation sessions with international teams over the next few days. (The international flavor of the whole thing was further enhanced by the fact that one of our team was actually from Ireland and the other from Louisiana, both being LMU students). As with the national competition, the teams were scored on criteria including: effective information gathering through effective questioning techniques; formulation and evaluation of options; creative solution generation and problem solving; effective use of the mediator and caucusing. We then headed off to the reception wondering, as we had several weeks ago in the national competition, whether we’d done enough to get through to the final rounds. The cocktail reception and announcement for the final rounds was held in the magnificent splendor of premises used by the US Embassy, with the Eiffel Tower in the background. Then the announcement came - LMU were the first British team in two years through to the final rounds. It was therefore back to the team hotel beside the Champs-Elysees for a late night of strategizing for the next mediation session at eight the next morning. That mediation session took place at the ICC headquarters, a split decision by the three judges ending our team’s involvement in this year’s competition. So we ended up in eleventh place out of sixty-six. This was a result we were very pleased with, particularly since it was our first foray into this international competition.
The whole experience enabled students to use and develop integral mediation skills, such as creating value for mutual benefit through integrative bargaining, focusing on interests rather than positions and `expanding the pie’ through generating creative options, validating the other party’s viewpoint and summarizing etc. Having personally undertaken mediation training at Pepperdine University in southern California several years ago, it was very satisfying to have the opportunity to coach the LMU team in these skills to which I was introduced at Pepperdine. It was also pleasing to see a team from Pepperdine taking part in the Paris competition and to see that they too, from my “mediation alma mater,” did well in this competition.
At a time when there is so much news of conflict and strife around the world it was inspiring to see young professionals from all around the world coming together to implement dispute resolution techniques to identify shared goals and concerns and to achieve mutually beneficial solutions. One American judge encapsulated this feeling when, in an emotional voice, she told teams in one mediation session during feedback that she felt privileged to be observing such competency by young people in what could be such an important process for the future as world events potentially make the world such an increasingly dangerous place. Maybe one day therefore we will see mediators from amongst these young people we are training today being successfully sent into an international conflict situation instead of the troops. For now however, maintaining and developing training to provide the next generation with proficiency in ADR in legal and business contexts surely in itself justifies the encouragement of these and similar mediation competitions.
In addition to these activities and the new mediation course, LMU’s Faculty of Law, Governance and International Relations has recently brought in a range of eminent speakers in the field of dispute resolution. As well as being a growing area of legal and commercial practice, the “transportability” of mediation skills and competencies and their applicability to areas such as diplomacy and peace-keeping are encouraging us to develop our activities in these areas to enhance students’ employability. The opportunities to get involved are correspondingly increasing, with volunteer officials etc being required for competitions like these and other such initiatives. I would urge readers already established in their chosen fields therefore to get involved in a volunteer capacity with such projects if not already involved in these. Oh and the eventual winner in Paris this year out of the sixty-six teams taking part? That was South Texas College of Law. Already plans are in hand for next year’s competition from 8 to 13 February 2013…