Shilpi Sharma’s Post

🇪🇸 1st edition UIA Union Internationale des Avocats PIL Forum 💬 THE END : final point of my presentation at the "Prevention and resolution of family, property and commercial disputes" panel with Fernando De La Mata, Sandra Landais, Sergio Marco Pérez, John McElroy, Gaëlle Bonnet, Dr. Katharina Klingel and Anthony DECROOCQ ⚖️ An interesting decision was delivered on 5 June 2024 by the High Court of Justice of Ireland in an inheritance case [2024] IEHC 308 [Record No. 2023/2159P]: the Court imposed a penalty on an Irish solicitor for having failed to comply with his legal duty to give advice on mediation before entering proceedings. Section 14 of the Irish Statute Book 2017 imposes a duty on practicing solicitors to advise their clients to consider mediation as a means of attempting to resolve the dispute at stake. https://lnkd.in/ezh5RVvR Judge Kennedy considered that: ➼An unreasonable failure to engage in mediation or negotiations could be a relevant factor in determining costs. ➼Lawyers acting in their clients' best interests should advise them on alternatives to litigation ➼It leaves the opportunity for the lawyer to explain why it may not be appropriate to mediate in a specific dispute. Mediation is not mandatory.   Two sentences of judge Kennedy’s motivation caught my attention: ➼Advising a client on the benefits of mediation is “neither unreasonable nor burdensome” and could help the client make an informed decision ➼Even if mediation was not appropriate at the time, " 𝒂 𝒔𝒆𝒆𝒅 𝒊𝒔 𝒑𝒍𝒂𝒏𝒕𝒆𝒅 "🌱 ➼”While I make no direction, I do consider that each side and their advisors would be wise to reflect at this stage on the possibility of a mediation or similar process (without preconditions) before even more significant costs are incurred” ❗ ”This is particularly important in family, business and partnership disputes”    🇪🇸 UIA 2024 Palma de Mallorca Conference Program ➡︎ https://lnkd.in/gsUHK7MS   #mediation #ADR #NDR #mediator #conflict #law #leadership #inheritance #inheritanceconflicts #inheritancedisputes #inheritancemediation #succession #patrimonialconflicts #patrimonialdisputes #patrimonialmediation #familyoffice #familyoffices #familydispute #familydisputes #partnershipdispute #partnershipdisputes #dispute #disputeresolution #conflictmanager #commercialmediation s #intercompaniesmediation #internationalmediators #internationalmediation #privateinternationallaw #droitinternationalprive #différend #conflit #MARD #médiation #amiable #résolution #résolutionnégociée #famille #conflitsfamiliaux #conflitssuccessoraux #lawyer #lawyers #avocat #avocats #attorney #attorneys #solicitor #solicitors      

About issues with the process of mediation in the district courts - In the district court, when a matter is referred to mediation, it goes before another judge who acts as a mediator. Some judges do a good job while mediating while others don’t. It’s fine; no mediator can guarantee resolution of disputes and I’m sure everyone tries their best. However, a recent experience has left me wondering if the process itself needs to be better regulated and documented. In this particular mediation concerning a domestic violence matter, the concerned mediator judge not only shouted at the parties for un-understandable reasons but also made very disrespectful comments about the role of women in society and marriage before wrapping up the mediation in 10-15 minutes. No surprise that the mediation failed. In such cases, while the matter is sent back to the court for further litigation, no one ever reviews what really happened in the mediation; and how would they even? These mediations take place behind closed doors, typically in judges’ chambers. There is no record of who said what. No minutes or transcript or video or audio or notes or anything; no apparent strategy for the mediation on part of the mediator, no roadmap for reaching a possible settlement, no consultation with the advocates of the parties (who could have a tremendously important role in counselling their clients towards a settlement); NOTHING! What’s the point of going before a mediator then? If someone had to just wing it, even a lay person could do it. A trained mediator in a formal process of mediation should really be expected to do FAR BETTER than just trying to see if the parties are willing to settle or not. Lack of documentation and regulation of this process means that at least as far as these mediations are concerned, there is no data as to what is going wrong and what needs to be changed. How do you improve something without measuring it? You can’t, which is a shame because if done right, mediation is a game changer for litigation, both in terms of earlier relief for parties and reduction of pendency of cases in court. #mediation #litigation #law #improvement

Law House partner Zouhdi Yakan, LL.M. (ADR) and The Mediation Hub MENA founder Christine Maksoud co-authored and published an article titled: "Mediator's Strategies For Responding to Particular Situations" which sheds light on specific situations that may arise during the mediation process and discusses strategies, techniques and skills that mediators can employ to navigate these challenges and keep the mediation on track. Key points covered include: - The absence of a decision-maker in the room - Non-genuine participation by parties - Lawyers resisting the process - Power imbalances between parties - Premature concessions or unrealistic positions - Deadlines impacting the process - Managing intense emotions, beliefs, values, and morals in mediation - Addressing accusations of bias Link to the full article: https://lnkd.in/dRsCWZZm

💬 "We cannot let the tail wag the dog. Dispute resolution can't be about paying lawyers, it's about solving disputes for real people". – Quote from Master of the Rolls, Sir Geoffrey Voss on Day 2 of the Churchill v Merthyr Tydfil County Borough Council hearing Here are some of the other key points from Day 2 as reported by James South: 💡All parties and intervenors agree that Halsey was no longer good law in relation to mandating mediation and Article 6. 💡Counsel for CEDR/CMC/CIArb was given permission to address the court. In addition to the above point Edwin Glasgow Qc also addressed the factors judges should address when considering ordering mediation, where we disagreed with the Bar Council position - these included:     ▪️ We believe that the use of the phrase "mandatory mediation" is unhelpful and should not be adopted as common parlance. ▪️ We also disagree with the implication that the success of mediation is necessarily dependent on it having commenced as a consensual process. ▪️ We believe that most mediations are arranged promptly and do not cause significant delay or disproportionate costs. ▪️ We also disagree with the Bar Council's submission that mediators are generally not under any sort of duty to ensure that an unrepresented party is not taken advantage of or that he or she obtains a just outcome .The principle that unrepresented parties may not be taken advantage of, and that the mediator uses a fair process that produces a just outcome from the perspective of the parties who are the decision-makers on the terms of their settlement, is fundamental to, and at the forefront of, all mediations conducted by competent mediators   💡 The respondent (Churchill) accepted that Halsey was no longer good law but sought to argue (amongst other things) that internal complaint's process was not ADR. Thank you to Civil Mediation Council, Chartered Institute of Arbitrators (CIArb), Kelly Stricklin-Coutinho, Stewarts, Elaina Bailes, Matthew Caples, Rebecca Clark, Catherine Dixon and Isabel Phillips for their partnership in our joint intervention. #mediation #disputeresolution

Just having breakfast before the Socio Legal Scholars Conference at University of Portsmouth today. I am presenting in the Civil Justice and ADR stream discussing some empirical data from my interview research into elite international commercial mediators' experiences with online mediation conducted with Tania Sourdin Some headlines: most of our mediators had little experience with online mediation when COVID hit but many have become converts since. In-person mediation may still be the preference of most to aid better interpersonal communications, but online works generally better than was expected. Aside from costs, time and environmental benefits, other pros including immediacy, ease in procuring higher level decision makers, providing a safer environment for matters of high emotion, and development of higher quality pre-mediation work with parties. Most viewed that online would continue as a significant part of the practice base alongside in-person mediation although some viewed that there was growing client and lawyer demand for return to in-person. Although few noted any problems with confidentiality or security issues, there may be a need to think about and devise new ethical and regulatory frameworks to handle the new online practice field.

I’m happy to share that I’ve obtained a new certification: Certificate of Arbitration & Mediation quiz competition from LawswithRachna. The Mediation Act of 2023, recently enacted by Parliament, fortifies the Alternative Dispute Resolution (ADR) system. It emphasizes community mediation and embraces online mediation as a viable and cost-effective process. Provisions within the Act establish the Mediation Council of India (MCI), ensure proceedings' confidentiality, recognize mediation institutes, facilitate mediator empanelment, define mediation timelines, allow withdrawal from proceedings, and specify circumstances for challenging mediated agreements. LawswithRachna, founded by Adv. Rachna Shroff, educates law students and lawyers, aiding them in excelling in their respective legal domains. The organization is organizing an online quiz on Arbitration and Mediation, along with a webinar on the Mediation Act of 2023 on December 23, 2023. Appreciation is extended to Adv. Rachna Shroff for conducting the informative webinar on the Mediation Act and hosting the quiz competition. #MediationAct2023 #OnlineMediation #MediationCouncilIndia #LegalProvisions #LawswithRachna #LegalEducation #ArbitrationQuiz #MediationWebinar #LawStudents #LegalExcellence #ADRInIndia #ResolveLegalDisputes #legalknowledge #arbitrationlaw #mediationlaw

Question - What is the role of a lawyer in a Pressure-Cooker Mediation❓ Most court-annexed mediations in India tend to be pressure-cooker situations, organised with little preparation & no design... Skilled Lawyers are necessary! Jonathan Rodrigues writes about the mediator navigating through pressure-cooker mediations, but what about the role of a lawyer? What are your thoughts on the role of a lawyer in such mediations? 📮 Write to us - [email protected] #resolutionarylawyers #mediationadvocacy #mediateinindia

Mediation is a process that allows a third-party skilled neutral to assist in resolving conflicts between disputing parties. Some of the benefits of mediation include: Cost savings: Mediation is less expensive than litigation. The process that all parties follow takes much less time. That means you don’t need to worry about the expense of moving a case through the standard legal channels. Mediation can usually achieve a successful outcome in a matter of hours or days, while a case in the hands of the judicial system could take months or years to reach a judgment. Confidentiality: Mediation provides confidentiality throughout the negotiation process. Court hearings in the United States are a matter of public record. Mediation is not. It remains a strictly confidential process. No one but the individuals or parties connected to the dispute, along with the mediator, know what is happening with a case. Additionally, the court system cannot force mediators to testify in court as to the progress or processes that happen. Most mediators destroy their notes or delete files once a negotiation gets reached. Unless child abuse, threatened criminal acts, or other incidents that invoke mandatory reporting occur, mediators remain neutral and impartial. Control over the eventual resolution: If a dispute lands in court, then both parties agree to let a judge or jury make a decision on their behalf. When everyone uses mediation instead, there is more control over the eventual resolution. That means each group has access to more solutions that can emerge from the settlement process that wouldn’t be offered by a judge or jury. Flexibility: Mediation is a flexible process that can be tailored to the needs of the parties involved. The mediator can work with the parties to find a solution that works for everyone. This can include creative solutions that would not be available in a court of law. Enhanced communication: Mediation provides a neutral and confidential setting in which the parties can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions. Mediation helps to discover the real issues in your conflict. #familymediation #familymediationweek2024 #disputeresolution

My colleague Jamie Cartwright explains the appeal of #mediation in his new article: "Mediation has a significant appeal as a means of seeking to resolve a dispute. It is confidential where confidentiality is important. The terms of a resolution are for the parties. This cannot be overstated. There is significantly greater (almost unlimited) flexibility as to what may be agreed than what a court or tribunal is able to determine or award. Mediation also provides an opportunity for certainty and an ability to manage risk, where a court or tribunal outcome may be binary. As a non-judicial process at which the mediator facilitates but has no role to make determinations, if mediation fails, the dispute simply moves forward. Used well by parties and by representatives who embrace the process and opportunity mediation brings, mediation is an attractive proposition." #disputeresolution #disputes #thoughtleadership

A thought provoking insight into the private and confidential nature of mediation. Well worth a read.