Michael Napier

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62Business SectionCompulsion to mediateMost mediators would like partiesto come to the table voluntarily.Forcing them to try mediation isn’t afrightfully good idea as it might dentthe very high settlement rate. Recentmoves to make mediation compulsoryhave produced some surprising resultsin the small claims courts across theland with a settlement rate of over90%. In family mediation it is now virtually a pre conditionto try mediation very early on. Why does it work there, yetmost commercial mediators aren’t keen on forcing partiesto mediate.Empowering controlYears ago Leonard Riskin wrote that ‘mediation coulddo much to improve the quality of life in our society, notjust because of the savings it brings, but because it fostersinteraction among people, and empowers them to control theirown lives’. If in part a lawyer’s role is to encourage dialogueto encourage settlement so that their clients achieve anearly, satisfactory and relatively inexpensive resolution thatis their own and not an imposed one, why should therebe any drawbacks to forcing them to try mediation? Whyshould the courts not impose hefty penalties against partieswho refused to try mediation when they perhaps shouldhave done, a la Dunnett v Railtrack and Burchall v Bullard?‘If in part a lawyer’s role is to encouragedialogue to encourage settlement...why should there be any drawbacks toforcing them to try mediation?’Parties have an inalienable right to self determination. Inone mediation, the Claimant turned down a very generousoffer from the bank with the words ‘I’ve got my rights’.Well he did indeed and it wasn’t my role to prescribewhat he could do with that! But he wasn’t coerced intomediation nor was I prepared to say directly he wasfoolish. The court could not apply the unreasonable refusalto mediate as he did get there. Dyson LJ’s dicta in LordMalmesbury v Strutt and Parker that the courts shouldknow and punish a party behaving unreasonably in themediation would not wash as it was all confidential. Buthaving said that solicitors should give appropriate adviceand encourage using mediation as it is so often moreappropriate more holistic than the alternatives.Anthony Glaister MCIArb, resolve@anthonyglaister.co.ukQ: Are legal marketchanges creating newprocurement andoutsourcing models?If the harsh realities ofA: being competitive in atough market are not enoughto spur firms to look at theirprocurement and outsourcingpractices, increased competitionfrom new market entrants willmake this essential. However goodprocurement is not just an issuefor ABS’s and newly merged ‘super-firms’ but a criticalissue for firms of all sizes.The changes taking place are profound. Long goneare the days of the commercial rep visiting everylaw firm in town in a single day - taking orders whileconsuming copious amounts of coffee (one benefit =reduction on the coffee bill!).As professionalism has increased firms aren’tjust relying on their own facilities management andprocurement teams but also looking outside forexpertise. This expertise comes from cost reductionconsultants with their finger on the pulse of the bestsources of supply or directly from large outsourcedsuppliers, such as Oyez Office Team. These suppliersproduce guaranteed savings by consolidatingpurchasing across multiple supply areas – or likeWilliams Lea and Mitie - are able to take over backoffice functions and undertake facilities management.Even innocuous looking areas such as archive recordsstorage have pitfalls for the unwary. It is commonto talk to firms who wish to change suppliers whodiscover onerous clauses in their contracts. In one casea £300,000 exit penalty to move archive supplier withan annual contract value of £50,000. The lesson is tosupervise the signing of any long term contract.Another way firms reduce their costs is by tenderingoutsourcing contracts and procurement requirements,increasingly common amongst merged larger firmsbut even smaller firms are getting in. Tenders arebecoming more onerous, putting potential suppliersthrough their paces. This ensures the supplier has thelowest total cost of supply and that compliance and riskmanagement issues are assessed.However, the more onerous the tender, the moredifficult it is for the firm to manage the process.We have seen tender processes which must equalthe recent West Coast mainline fiasco - and we allknow what happened to that! A balanced approachto procurement and outsourcing is usually the rightapproach for law firms, but the choice of doing nothingis not really an option.By Nick Hodges, Managing Director, Oyez Office TeamML // November 2012
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The Business of LawNovember 2012 |
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Introduction 03Modern Law Conferenc
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Contents0527 Identify, target, comp
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Dom Regan News 07Dom Regan newsBudg
Page 11: Interview 11Interview with...David
Page 14 and 15: 14 InterviewInterview with...Michae
Page 16: 16 InterviewWhat Michael did next
Page 19 and 20: The views 1919-33TheViewsML // Nove
Page 21 and 22: The views 21Delivering an Investmen
Page 23 and 24: The views23Q: Will the Legal Ombuds
Page 25: The views25Tackling risk profilesa
Page 28 and 29: Hewetson Shah are leading legalsear
Page 30 and 31: 160 Barristers, multiple awards &ov
Page 32 and 33: PARAMOUNT LEGALC OSTS LIMITEDRural
Page 34 and 35: L L PN E S B I T L A W G R O U PBUR
Page 36 and 37: With I4G CreditForce, his Collectio
Page 38 and 39: Because litigation israrely black a
Page 40 and 41: Together we’re big on qualityWe
Page 43 and 44: Features43Referral fee ban:the Tita
Page 45 and 46: Features 45The impactThe existing s
Page 47 and 48: Features 47Best in breedKey to the
Page 49 and 50: Features49Get in sync‘Anthony Smi
Page 51 and 52: Business Management 5151-62Business
Page 53 and 54: Business Section 53Q: Is the legal
Page 55 and 56: Business Section 55Q: Will the Lega
Page 57 and 58: Business Section 57Q: Will the Lega
Page 59 and 60: Business Section 59at another firm
Page 61: Finally ... a Form-E that’s intel
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Michael Napier

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