The title of my next book is, ‘Culture & Ethics in the Mediation of Claims for the Return of Ancient Art.’ This will be written as both a multi-disciplinary academic course text book for Law Students, and as a handbook for Mediators and Mediation Advocates – globally.
Monthly Archives: January 2025
‘Barrister Assisted Mediation’
Mediation meeting: Greatest Criminal Minds in the World Inc v Catwoman.
9am: Opening plenary session.
Venue: The Commissioner Gordon and Police Chief Miles O’Hara conference suite (located in the basement of a law firm somewhere in Gotham City!)…
The Joker (representing ‘Greatest Criminal Minds in the World Inc’) and the Penguin are seated on one side of the table, and Catwoman (a formerly purrfect employee) and her representative – the Riddler, are seated on the other. They are face to face, eye ball to eye ball, and nobody has touched the chocolate chip cookies.
It’s an unfair dismissal claim.
Catwoman’s complaint is that she was unfairly dismissed because she had whacked the Penguin on his beak with her Il Marchesato designer umbrella, when he turned up for work (yes you guessed it) dressed as a penguin, and waddled toward her making a loud quacking noise and flapping his arms, which she took to be an insult.
The company (‘Greatest Criminal Minds in the World Inc’) allege that it was dress down Friday in Gotham City and that Catwoman had behaved inappropriately.
They are meeting in an attempt to resolve the dispute through ‘Barrister-Assisted Co-Mediation’.
Batman, who is an accredited Mediator, but neither a lawyer, nor an expert on dress codes in the workplace of a criminal organisation, has been jointly appointed by the parties to mediate the dispute.
The parties have also jointly appointed Robin (otherwise known as the ‘Boy Wonder’), a very smart Barrister who specialises in this area of the law, to help Batman, i.e. as an expert/specialist Co-Mediator:
1. understand the facts, technical issues in the case, and underlying legal principles, and
2. facilitate the negotiation of a settlement (jointly developed by the parties) through a process of road-mapping and creative problem-solving that results in the agreement of a formula for settlement and terms.
I call this process ‘Barrister Assisted Mediation’ (‘BAM!’).
Through the process of Barrister Assisted Mediation (‘BAM’), can the caped crusaders help the parties agree terms of settlement before 5.30pm?
Well folks you will have to wait until the next episode.
Meanwhile, there is a lot of work going on behind the scenes, and the chocolate chip cookies have mysteriously disappeared!
Batman: ‘Come on, Robin, to the Bat Cave! There’s not a moment to lose!’
Boy wonder: ‘The way we get into these scrapes and get out of them, it’s almost as though someone was dreaming up these situations; guiding our destiny.’
Batman: ‘Let’s Go Robin’.
Boy Wonder: ‘Atomic batteries to power, Turbines to speed.’
Batman: ‘Roger. Ready to move out.’
BAM! …
As Commissioner Gordon might have said to Police Chief Miles O’Hara as they gazed upwards at the Batcopter flying overhead (que Batman music) – ‘Doesn’t it give you a warm glow just knowing that they are up there!’
TO BE CONTINUED …
Meanwhile wishing all readers of my posts a Happy and Peaceful New Year!
‘Ethics in Mediation Advocacy.’
My next online talk to members of the SCMA worldwide later in the year, is entitled – ‘Mediation Advocacy & Ethics in Claims for the Return of Ancient Art.’
In my available free time this month, I will be reading ‘What’s Fair – Ethics for Negotiators’, which is a publication of the Program on Negotiation at Harvard Law School, edited by Carrie Menkel Meadow and Michael Wheeler. It is the leading textbook for students and practitioners on the subject.
Today I also discovered this article about honesty and integrity in Mediation –
https://lnkd.in/ePnbSEEq
Note also my post – ‘Truth in key pre-action documents is a litigation “cultural” game-changer!’ (23.08.2024) at ‘Carl’s Mediation blog’, in which I wrote:
‘P.89 of the 92 page CJC Review of Pre-Action Protocols Final Report Part 1, August 2023, states that the parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute.
“As the matter progresses, you will be required to give signed confirmation of the truth of certain matters in the dispute. There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings. A statement of truth confirms that a party believes that the facts in a document are true.”
So, if in a key pre-action communication/document which requires a statement of truth, a party knowingly makes a false representation e.g. by alleging a revised factual narrative that is demonstrably false, i.e. because logically, it is self-contradictory, then it would appear to follow that this may result in a criminal investigation and prosecution. If my understanding is correct & if these proposals are implemented, then this will deter unmeritorious claims before significant costs have been incurred, i.e. nuisance value/try-on claims.’
Depending upon how rigorously judges apply these principles, will determine whether the underlying ‘policy’ of the court, i.e. its ‘ethos’, becomes a ‘cultural’ game-changer in litigation.
Meanwhile, I suspect that any lawyer working under a CFA, would not want to go near such an unscrupulous claimant with a barge-pole, as in effect these proposed changes will result in a new and more rigorous standard of pre-action diligence, not only by the parties themselves, but also by their legal advisors – which of course will be an ongoing process throughout the conduct of the litigation.
So, let us see just how strict the judges are, about applying the letter of the CPR in accordance with the underlying ethos, in 2025.