Publications

HAPPY BIRTHDAY, CPR?

As I write this, the world is in the grip of the coronavirus pandemic.  We are all encouraged to wash our hands thoroughly to the accompaniment of “Happy Birthday”, sung twice.  Birthdays are generally joyous occasions but we have nothing to celebrate, other than perhaps that we are well enough to wash our own hands. 

Today is the 21st birthday (or if you prefer, the anniversary) of the Civil Procedure Rules which came into force on Monday 26 April 1999. 

MEDIATION vs JSM

Mark Field looks at reasons to consider a mediation in preference to a joint settlement meeting.
  • “We are happy with a JSM”.
  • “We see no reason to use mediation.”
  • “We are so far apart that a mediation would be pointless.”

These are typical responses of practitioners to a proposal of a mediation. As a method of dispute resolution, mediation was given a particular focus following the introduction of the Civil Procedure reforms of Lord Woolf and again, with the Jackson Reforms.

So, the concept is well known to practitioners and they now know that they should not decline an offer of mediation (PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288).

first published by the Law Society’s Civil Litigation Section – 2014

RSVP: “I accept”

Mark Field explains why an invitation to mediate should not be ignored or refused.

As Professor Dominic Regan of City Law School London has remarked, “mediation is like sex – it is thought about more often than it is practised”.

But the judiciary is certainly playing its part in narrowing the disparity between the theory and what actually happens in practice.

first published by: Law Society Civil Litigation Section – 2016

They Think It’s All Over … It Should be Now

Mark Field considers the final steps of a mediation.

Somewhere in the city a church clock chimed six o’clock. James Reid ruminated over the events of the day. When his solicitor, Ken Diplock, had suggested a mediation, he had gone along with it.

He was happy to try anything that could avoid the uncertainty and cost of the trial later in the year. He’d gone along with an open mind. That morning the mediator, Robert Goff, had explained how the day would proceed. He seemed optimistic that a settlement would be achieved. James had not shared his optimism.

He felt that the business relationship between him and the defendant, Ian Fraser, was so broken that no bridges could be built. But he was far from disappointed to have been proved wrong.

first published by: Law Society Civil Litigation Section – 2016

No mediation please – we’re litigators

Mark Field examines why commercial considerations hamper the more widespread use of mediation.
  • It is surprising that insurers are not more pro-active in driving mediation.

The so-called Woolf Reforms were embodied in the Civil Procedure Rules (“CPR”) that came into effect on 26 April 1999. These reforms were intended to address the two main concerns that Lord Woolf had identified: the slow speed and great expense of litigation.

The hope was that if cases were resolved more rapidly, there would be a reduction in costs. Under the CPR, the management of cases is by the court, not by the parties’ solicitors, and the parties are expected to conduct litigation in a way that fulfils the “overriding objective”.The overriding objective has been expanded since its introduction such that the court is required to manage a case not only “justly” (the original requirement) but also “at proportionate cost”.

first published by: Modern Claims Magazine – 2017

Mediate – don’t litigate

Mark Field discusses the role of mediation in resolving disputes

A dispute with a customer or supplier can quickly become acrimonious; trust is broken, a business relationship may be ended. Even if the rift is not irrevocable, the relationship is rarely as strong as it was. Reputations can suffer, both within one’s industry and with customers and potential customers – social media is a powerful influence.

If the dispute appears intractable, then you think of contacting your solicitor – someone who will fight your corner, win your case, get you recompense. Except life isn’t like that. The case takes up more and more of your time and money but your solicitor reassures you that “we have a good case, the barrister thinks we should win”. Sometimes an offer in settlement is made. You think (or your solicitor advises) that you can do better, so you reject it and perhaps make a counter offer, which the other party also rejects. As the court date approaches, confidence wanes – “let’s hope the judge believes you” and warnings are given – “be firm during cross-examination, don’t get rattled”.

first published by: Business Lancashire – 2017

AN INVITATION TO MEDIATE? ACCEPT!

In issue 3 Linda Patterson wrote (“Mediation within the NHS in Scotland”) that the use of mediation within the NHS in Scotland is “proving to be a slow burner”. The same could be said of the use of mediation south of the border.

But change is on the horizon. In 2014, the NHSLA published “Mediating claims in the NHS”. It runs to four pages, in which the NHSLA states its commitment to mediation. Disappointingly, the aspirations expressed were not translated into widespread action.

However, the NHSLA (now “NHS Resolution” from April 2017) subsequently displayed a renewed vigour to embrace mediation and in December 2016 it launched its two mediation panels, the first dealing with clinical negligence and personal injury claims and the second
with costs.

first published by: Medico Legal Magazine – 2017

You may also be interested in


Workplace Mediation

Mediating employer/employee disputes, allegations of unfair treatment and negotiating terms of departure.

Commercial Mediation

Mediation can help with a wide range of commercial disputes.

Case Studies

Case studies of some of the mediations I have been involved in.

Copyright © 2014  Mark Field Mediation. All rights reserved.

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