I have been watching the negotiations following our elections with great interest. The potential for politicians to work together in the interests of the country is an exciting prospect if one dares to hope they will do what they say they want to do.

There was a significant wobble in my enthusiasm during most of yesterday and by last night I felt a sense of gloom return. Like many, I thought Nick Clegg was acting very honourably until the point it was revealed that the LibDems had started secret discussions with the Labour Party. I was disappointed and it felt important to notice that. Someone once said that ‘a cynic is a disappointed optimist’.

It was important because Clegg seemed to be not doing what he said he would do (put the formation of a stable government first) and doing what he said he would not do (make Proportional Representation a deal breaker) and it seemed a little early in the day for changing minds and empty promises. OK so what’s new about that?

Thankfully, some mature minds in the Labour Party put a stop to that diversion on principle and we have an agreement. Credit where it is due for making that call. Even so, I don’t think the events of yesterday will be forgotten by the press and the political commentators. Arguably, we do now have an arrangement which reflects the votes cast last week.  A government with a decent majority but a tempered mandate and an opposition to provide checks and balances. This was achieved without a drastic change to the voting system. PR has a lot of drawbacks despite the appearance of a fairer system.

The challenge now is for the two parties in government to continue in a sensible and measured negotiations on a daily basis without displaying too much compromise or watering down in the decision making. That is important because we are going to need some tough and difficult decisions over the next weeks and months.

I do not want to see them squabbling; I don’t want to hear backbiting or sneaky briefings against colleagues; I don’t want to hear anymore stories about self-interested and self-serving activities. I want to see them work together, fiercely debate the issues that matter and demonstrate their first interest is public service. Only then can we can hope to maintain our independence and look after our citizens in order to be a strong member of the European Community. The price of not being a strong member is to lose the right to make independent choices, as Greece has recently discovered, and makes a mockery of any voting system if it comes down to ‘he who pays the piper, calls the tune.’

To that end this new government could do worse than have the assistance of experienced mediators working alongside keeping the communication and momentum going and marshaling options and choices.

The third eye, perspective, call it what you will, could make all the difference in helping the coalition build strength and trust. The most important of those being trust.

The benefits could be far reaching. Such a lead from the top would give encouragement to companies and organisations to follow and start a new era of agreement.

It is easy to disagree. The act of disagreeing can be addictive. It can also be confused with winning.

Added link: Law Gazette

Not so long ago we were encouraging everybody to mediate in every case. We “educated” people on how to look at cases from the “why not mediate” point of view. We wanted people to understand how relevant mediation is for all types of cases.

I thought about the appropriateness of this approach again last week as I read a report in The Independent on an Employment Tribunal involving a senior hospital consultant who was suspended “after repeatedly raising concerns about the health and safety of patients”. He was strongly opposed to the reduction of nursing staff and specialist facilities at his hospital and warned the trust that delayed review of cancer patients meant they had a “very good case of negligence against the trust.”

The safety of patients is a matter of increasing concern as budgets are cut and costs are revisited. The pressure on consultants is enormous in dealing with the conflict between clinical practice and financial management. For the hospital trusts, there is a conflict between the expectations of the public that the best treatment should be available for everyone and providing the treatment with the funding available. Consultants carry great personal risks from the consequences of a “mistake or delay” and they do so with their reputations and ability to earn a living.

In the case reported in The Independent, and from the details given, it would appear that this was a case like many others I have mediated. The outcome of the Employment Tribunal is of real public interest and the existence of a judgment will no doubt have an impact on similar cases in the future.

So the question is: should we take account of the public interest and judge that some cases must be heard in a tribunal or court? Or does every individual and organisation, whoever they may be, have a right to choose private dispute resolution?

If this consultant had said to me that he didn’t want to try mediation because he wanted the matter to be made public, I would have replied that if that was important to him then there was nothing to stop him from including that in his negotiations. The fact that a mediation is confidential does not prevent the parties from agreeing to make a public statement and that public statement can include anything that they agree upon.

There are real benefits to mediating even matters of public interest which cannot be achieved at tribunal or trial and they have to do with the particular needs of the parties in relation to the specific matter and the circumstances surrounding that matter. I have often assisted parties in drafting agreed changes to policy and indeed joint press releases on outcomes.

I can see the potential for achieving a rapid change in practice when there is a judgment to refer to. There may be some out there who are very thankful to have such a judgment and will wave it in front of reluctant managers as a warning.

What do you think? Are there some cases which should not be mediated as opposed to cannot be mediated?

The benefits of mediation have for a long time highlighted potential cost savings. The current review of costs will have implications and so the series of seminars designed to collect the views and opinions of the legal and business communities may be of interest to mediators.

From the web site of the Judiciary

The principal purpose of the meetings held during the period May to July 2009 is (a) to enable participants to express views about the issues raised in the Preliminary Report and (b) to provide a forum for discussion of those issues.

Topical seminars
To supplement the public seminars outlined above and to facilitate open and informed debate about the issues identified in the Preliminary Report, Sir Rupert Jackson is also attending eight topical seminars.  It is envisaged that these events will be attended by those with relevant expertise or interest, on all sides, in the issues to be debated, and are kindly being hosted by others, as follows:
SEMINAR 1 – Monday 20th July, 2pm – 5pm
After-the-event insurance, success fees and conditional fee agreements
Hosted by Reynolds Porter Chamberlain
Tower Bridge House, St Katharine’s Way, London, E1W 1AA
If you would like to attend this event, please contact Sarah Hazlewood before Thursday 16th July:
sarah.hazlewood@rpc.co.uk

SEMINAR 2 – Tuesday 21st July, 10am – 1pm
CLAFs, SLASs and contingency fees
Hosted by the Chartered Institute of Arbitrators
12 Bloomsbury Square, London WC1A 2LP
If you would like to attend this event, please Julio César Betancourt before Friday 17th July:
jbetancourt@ciarb.org

SEMINAR 3 – Wednesday 22nd – 2.30 to 4.30 pm
Fixed costs (a) in the fast track and (b) above the fast track (Wednesday 22nd July)
Hosted by Eversheds LLP
1 Wood Street, London, EC2V 7WS
If you would like to attend this event, please contact Angela Hanmore before Friday 17th July:
angelahanmore@eversheds.com

SEMINAR 4 – Friday 24th July, 12 noon – 2pm
Chancery litigation
Hosted by Clifford Chance LLP
10 Upper Bank Street, London, E14 5JJ
If you would like to attend this event, please contact Jo Gibson before Wednesday 22nd July:
Joanna.Gibson@CliffordChance.com

SEMINAR 5 – Monday 27th July, 4 – 6pm
Judicial review and environmental claims
Hosted by Herbert Smith LLP
Exchange House, Primrose Street, London, EC2A 2HS
If you would like to attend this event, please contact Nicolette Hayter before Thursday 23rd July:
nicolette.hayter@herbertsmith.com

SEMINAR 6 – Tuesday 28th July, 2 – 5pm
Business disputes involving SMEs
Hosted by Holman Fenwick Willan LLP
Friary Court, 65 Crutched Friars, London EC3N 2AE

If you would like to attend this event, please contact Sharon Klein before Friday 24th July:
events@hfw.com

SEMINAR 7 – Wednesday 29th July, 4.30pm – 6.30pm
Case management and cost management
Hosted by Mayer Brown International LLP
201 Bishopsgate, London, EC2M 3AF
If you would like to attend this event, please register your interest here by Wednesday 22nd July.

SEMINAR 8 – Thursday 30th July, 10am – 1pm
The assessment of costs
Co-hosted by the Supreme Court Costs Office Costs Practitioners’ Group and Reed Smith LLP
Reed Smith LLP, Broadgate Tower, 20 Primrose Street, London, EC2A 2RS
If you would like to attend this event, please contact the Costs Practitioners Group Secretary:
Jon.Martin2@hmcourts-service.gsi.gov.uk

A recent article in Building Magazine explores the potential costs of using mediation as a ‘ploy’.”Mediation can be used as a ploy to cut down on costs at a later trial. But if a party is suspected of playing along with no intention of compromising, everyone can end up losing a lot of money.”for the full article use the link here. http://www.building.co.uk/story.asp?sectioncode=57&storycode=3105092