Mediation by Ana Samuel – My Planet Liverpool Magazine, January 2018

This article by Ana Samuel appeared in My Planet Liverpool in January 2018. View the PDF here

TO MEDIATE OR NOT TO MEDIATE?

“To be, or not to be: that is the question: Whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them?”

Hamlet: William Shakespeare

Whilst Hamlet, forlorn at the death of his father, struggled internally with issues of life and death, the above quote arguably applies to any dispute; there is the option to back away from the dispute and accept your lot or fight against it. Either option, especially in a workplace context, results in on-going problems and for one, if not both parties, an inherently unsatisfactory outcome.

Although Hamlet may not have had the option of a mediator open to him, it is of note that mediation as a form of settling a dispute can be traced as far back as Confucius and the Roman Empire. It is therefore of no surprise that mediation is a theme that keeps on rearing its head, more recently with significant emphasis being placed upon it by the Courts, in order to avoid the process of litigation.

Offering mediation as an alternative will not only cut the time taken to achieve a result, but it will also be significantly more cost-effective for employers. Not only is it cheaper in the long term but less time is also lost preparing for, and undertaking the full legal process, as mediation can be organised and settled within a week.

While it has a success rate of between 80-90%, mediation also means the matter is kept confidential between parties and the outside world, meaning the effects on the business will be kept to the minimum.

SO WHAT ARE THE POTENTIAL GAINS OF MEDIATION?

  • Mediation gives all parties the ability to maintain/restore existing relationships.
  • There are reduced costs compared to an expensive litigation process.
  • Certainty, in that the process of mediation and a decision remains in the participants’ own hands as opposed to being decided by a Judge.
  • Flexible solutions and settlements that may not be open to a Court.
  • Mediation is a speedier process.
  • Mediation is a process that is easily understood by those not legally qualified.
  • Mediation is a less formal and time-consuming process.
  • Mediation is a process tailored to the participants’ individual requirements.
  • Mediation allows for the ability to hold ‘without prejudice’ discussions.
  • Mediation gives an opportunity to better understand each parties position and the relative strengths/weaknesses of the case.
  • Mediation gives the ability to continue down the formal legal route in the event that an agreement cannot be reached.
  • Mediation is a process that can be utilised both pre proceedings and at any stage during proceedings.

WHAT TYPES OF CASES ARE SUITED TO MEDIATION?

  • Contractual disputes
  • Workplace disputes
  • Commercial disputes
  • Personal Injury claims
  • Employment claims
  • Property disputes

In fact mediation lends itself to all situations, be it legal or not, where individuals or companies have reached an entrenched position.

In commercial environments, where maintenance of professional relationships and cash flow are key, more and more businesses are electing to participate in mediation at an early stage of a dispute, given the pragmatic and financial advantages of doing so, rather than embark on a lengthy litigation process.

In 2016 a Mediation Audit found that by utilising the process of mediation business as a whole had saved approximately £2.8 billion in management time, relationships, productivity and legal fees, with an average success rate in the order of 86%.

As such, it is fortunate that Hamlet was not contemplating whether to mediate or not, otherwise the world would have been deprived of one of the most well known soliloquies, the answer being self-explanatory and not warranting debate!

Mediation fees can be as low as £200. Complete Mediation has a diverse team of experienced mediators, a number with Employment Law backgrounds, who can assist you in resolving
your dispute.

Ana Samuel to present at NAMDET

Ana Samuel is delighted to be speaking on Medical Device Incidents at the NAMDET conference in Birmingham today. Looks to be an eventful day.

http://namdet.org/wp-content/uploads/2017/08/Final-2017-CONFERENCE-PROGRAMME.pdf

Mediation: the cost effective answer for Employers following the Supreme Court’s ruling

Mediation is already quicker and cheaper than more traditional legal practices, and it could be about to become a far more practical solution for businesses across the UK.

A Supreme Court ruling that the imposition of fees for those bringing employment tribunal claims is unlawful is set to have an enormous impact on the number of claims, which could put some companies in severe financial danger.

The imposition of the fees led to a 79% reduction in claims over the last three years, but the ruling will no doubt result in an exponential rise in claims, which will result in increased costs and disruption for businesses.

The potential costs include meeting the claim and potentially, through the imposition of a revised fee regime, a requirement to pay a fee to defend a claim.

Not only does the decision have implications for future claims but there is a real potential for those who did not pursue previous claims, due to the level of fees involved. They will now seek to bring a claim out of time and try to argue that either it was not reasonably practicable to bring a claim within the requisite time period due to the cost of fees involved and/or that it would be just and equitable to extend the period of time for bringing a claim.

Offering mediation as an alternative will not only cut the time taken to achieve a result, but it will also be significantly more cost-effective for employers. Not only is it cheaper in the long term but less time is also lost preparing for and undertaking the full legal process, as mediation can be organised and settled within a week.

While it has a success rate of between 80-90%, mediation also means the matter is kept confidential between parties and the outside world, meaning the effects on the business will be kept to the minimum.

Complete Mediation has a diverse team of experienced mediators, a number with Employment Law backgrounds who can assist you in resolving your dispute.

Mediation fees start from just £200 plus VAT, so for more details, please contact support@completemediation.co.uk or call us on 0333 241 2331 to see how we can help you.

All change – new discount rate

On the 27th February 2017 the MOJ announced that the discount rate, previously set at 2.5%, would drop down to -0.75% with effect from the 20th March 2017.

Whilst a drop had been expected no one could have predicted such a massive decrease. 
The resultant effect will be a significant increase in respect of future losses in personal injury claims.

Whilst the government has imposed the change it has failed to provide amended Ogden tables to accompany the rate change. However, PI calculator has provided amended calculations to assist in the short term.

What does this change mean?

  • Claimants are likely to withdrawn part 36 offers.
  • Defendants are likely to try to accept part 36 offers before they are withdrawn.
  • JSM’s are likely to be postponed as Claimant’s seek to re-calculate and Defendant’s await the possibility of the discount rate being re-visited following potential judicial review.
  • There are likely to be arguments over the applicability of part 36 offers and whether they afford cost protection in the future.
  • Schedules and Counter-schedules will need to be re-drafted.
  • There may be arguments over the calculation of a -0.75 discount rate given that it is not as straight forward as averaging the rates for 0-.5% and -1%.
  • PPO’s are arguably redundant, as it would make little sense for a Claimant to choose a periodical payment when they could have a lump sum calculated on a negative discount rate.
  • Costs are likely to increase given that an increase in damages will make higher cost bills proportionate.
  • Insurance policies are likely to increase in cost to cover the additional financial liability.
  • What becomes of Table 27?

Does this impact on all future losses?

– It is unclear at present whether it applies to Roberts v Johnstone calculations for future accommodation costs. If it were to apply then this would lead to a negative outcome, which can’t have been intended given that the basis for altering the discount rate was to make future loss figures fairer for Claimants.

Conclusion

The imposition of a negative discount rate absent guidance will lead to uncertainty, increased costs and satellite litigation.

Upcoming event: Cerebral Palsy & Brain Injury Cases – Ensuring you do the best for your client

Date & Time: 16/03/2016, 9:00 am – 5:00 pm
Location: Foresight Centre, Liverpool

Complete Counsel in association with AvMA (Action against Medical Accidents), Atlantic Chambers and A Neat Legal Services will be organising a conference on 16th March 2016 that will discuss and analyse the key areas currently under the spotlight in Cerebral Palsy and Brain Injury Cases so that lawyers are aware of the challenges required to best represent their clients.

The conference will commence with an in-depth session on CP litigation analysis, involving medical experts and barristers including Charles Feeny and Ana Samuel from Complete Counsel. The discussion will then move on to cover intrapartum fetal distress and surveillance focusing on CTGs, neonatal risk factors for CP, paediatric neurology and neuroradiology and case management input and care. Tactical budgeting in CP litigation will also be examined. The conference will be chaired by John Benson QC from Atlantic Chambers.

To download the full conference programme and to book your place in the event, please visit AvMA website here.

Charles Feeny and Ana Samuel Published in The AvMA Legal and Medical Journal

A clinical risk article entitled “She should have died hereafter? When is death caused in law by breach of duty?” written by Charles Feeny and Ana Samuel has been published in the forthcoming issue of Action Against Medical Accidents (AvMA) Medical Journal. The article examines the law surrounding causation in situations when a death could be said to have been accelerated with particular reference to the case of Davies v Countess of Chester Hospital [2014] EWHC 4294 (QB). In doing so, the authors argued that there are two options available to the courts, one that is an arbitrary time limit and the second which focuses on materiality.

For further details please contact editors@pro-vide-law.co.uk.