collaborate november 2010

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A National Mediation Service for Scotland?Small ClaimsMediation

SeminarNovember 25th 2010

Pollock Halls, University of

Edinburgh

Cost: 60 Non Members, 40

Members

Speakers:

Case Ellis - Chicago Litigator

and Mediator

Dr Bryan Clark - Strathclyde

Law School

James Rustidge - Head of

Small Claims Mediation Ser-

vice, Manchester Civil JusticeCentre

collaborateNovember 2010

Issue No 63

Inside this issue:

A National Media-

tion Service for

Scotland

1

Events 2

Balancing Act: The

Use of Mediation inDiscrimination

Cases

3

Snippets 9

The Success of

Foreclosure Media-

tion in America

10

For people interested in mediation in Scotland

The Scottish Mediation Network (SMN) welcomes the Scottish Governments responseto the report and recommendations of the Scottish Civil Courts Review. In particularwe welcome the commitment to consider carefully the feasibility of a national me-diation service.

The Scottish Government statement gives a ringing endorsement of the value of me-diation, saying that the Scottish Government believes that mediation offers signifi-cant opportunities for parties to reach an acceptable settlement of disputes, poten-tially at less cost to the public purse, and often with less distress and inconvenienceto the parties. (Paragraph 217). It says that subject to affordability in the contextof the current spending round, it will consider carefully any recommendations ofthe Civil Justice Advisory Group led by Lord Coulsfield, which is examining ways tocreate and support user friendly dispute resolution processes for claims of low finan-cial value, and how best to ensure access to justice, including through public legaleducation and alternative dispute resolution. (Paragraph 21). It recognises thatthe Reviews recommendations are generally worthwhile but as, by themselves, theymay not support a major shift towards ADR (Alternative Dispute Resolution), theScottish Government will therefore consider what further options may be available

and affordable. (Paragraph 217).

SMN has been an active contributor to the ongoing reform of the civil and adminis-trative justice system in Scotland. We have had constructive input to the ScottishCivil Courts Review and also to the reform of the Tribunals in Scotland on which theScottish Committee of the Administrative Justice and Tribunals Council has beenconsulting. The Chair of SMN, Charlie Irvine, is a member of the Civil Justice Advi-sory Group and we have also responded to their consultation on Ensuring effectiveaccess to appropriate and affordable dispute resolution. On 25 November we areholding a workshop for policymakers and practitioners at which we aim to work to-wards a model of small claims mediation for Scotland that is effective, affordableand just (details available from SMN). SMN is ready to intensify these efforts to sup-port Scottish Government in identifying and working up available and affordableoptions for progressing towards a national mediation service.

Margaret Lynch, Director of SMN said: We welcome the Scottish Governments in-terest in doing more to help people in Scotland to resolve their disputes without allof the delay, worry and expense which can be involved in going to court or tribunal. Access to justice is important and sometimes this does mean using the law toachieve justice. However, very often people in dispute find it more helpful to havethe help of an independent person (a mediator) to work out their own solutions tomeet their needs. A national mediation service is a fine objective and we will doeverything possible to help Scottish Government to achieve this. These are indeeddifficult times in which resources are tight. Fortunately, mediation, as well as be-ing a worthwhile service, can also help to save on the costs of the courts and tribu-

nals and of their users. So this may be the best time to achieve a major shift to-wards proportionate dispute resolution.

The Scottish Mediation Network is a registered Scottish Charity No SC034921 and a Company Limited by GuaranteeRegistration No SC258173. The registered office is 18 York Place Edinburgh EH1 3EP. Telephone 0131 556 1221

www.scottishmediation.org.uk


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Report on John Lande eventThe Scottish Mediation Network would like tothank Professor John Lande for his excellent Mas-terclass in Mediation held on the 28th of October2010 at York Place. This event

brought together experiencedmediators from across the Scot-tish mediation community. Itwas an opportunity to learnfrom varied practice areas, en-gage in role play and benefitfrom the knowledge expertiseof Professor John Lande andfellow professionals. JohnLande also provided the BurgessMemorial Lecture at StrathclydeUniversity, a link to the web-cast can be found on the News section of SMNwebsitewww.scottishmediation.org.uk

Report on Young MediatorsThe Young Mediators Group of the Law Society ofScotland attended a mediation information eve-ning led by David Semple. It proved a fantasticevening for Young Lawyers to learn more of thework that the Scottish Mediation Network under-takes and engage and learn from an experiencedmediator. An open floor for questions revealed a

real interest in mediation and the ways in whichsolicitors can engage with mediation, both by rep-resenting their client in mediation and as a train-ing as a mediator.

LIMITEDPLACESREMAINING

Small Claims Mediation:Policy and Practice

This day will enable policymakers and practitio-ners to focus on issues of practice and principlewith the aim of forging a model of small claimsmediation for Scotland that is effective, afford-able and just.

SMN welcomes a panel of speakers:

James Rustidge - Head of Small Claims MediationService at Manchester Civil Justice CentreBryan Clark - Strathclyde Law SchoolCase Ellis - Chicago litigator and mediator who

established a mediation scheme for party litigantsin Chicago courts

Five-Day Mediation Skills CourseSCMC25, 26 November, 2, 3, 9 December 2010

Edinburgh

This is a an assessed, accredited course for peo-ple who will be using mediation skills in their

work. The course provides information on keyconcepts in mediation and the opportunity to dis-cuss and practice basic skills in a safe, relaxedatmosphere.The course covers the whole mediation processfrom first contact with the service to closing acase including clients expectations before andduring mediation and how to maintain impartial-ity and confidentiality.The mediators role is explained and practisedusing typical scenarios for first visits to explore

mediation as an option, preparing clients forjoint meetings and handling difficult behaviour ata meeting.To book a place or for more information on theabove course, please contact:Robert Lambden - Scottish Community Mediation

Centretel: 0131 624 9200

e-mail: [email protected]

Mediation Skills Training

Conflict resolution and mediation skills forHR and managers

March 15th and 22nd 2010 , 10am -4pm,395+VAT Perth

Would you like to nip disputes in the budbefore they escalate?

Would you like to reduce employment tri-bunals?

Would you like to up-skill your conflictresolutions skills?

Rowan Consultancy has a successful track recordproviding workplace mediation to help resolveconflicts in Scottish organisations. Customers in-clude Scotland Transerv, Tayside Fire and Rescueand Scottish Autism.

First class! Informal, friendly tutors with a soundbase of skills, knowledge and understanding of thesubject matter Calum Bruce, Fife Fire and Rescue

Very useful skills and techniques for facilitatingmeetings. Good practical advice which can be used ona day-to-day basis, not just in mediation meetings. Ithoroughly enjoyed the two days. Louise Watson, HR,University of St Andrews

Rowan Consultancy,2nd Floor, 4 Kinnoull Street,PERTH, PH1 5EN

01738 562005 www.rowan-consultancy.co.uk


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On 1st October 2010 the Equality Act 2010 was intro-duced, which merges over 116 separate pieces ofdiscrimination legislation into the one Act. It aimsto simplify, harmonise and, in some respects,strengthen existing equalities legislation in the UK.Those used to dealing with disability, race, sex orany of the otherstrands of discrimina-tion under the previouslegislation, now needto think in terms ofthe nine protectedcharacteristics in re-spect of which protec-tion is now provided inthe employment con-

text by the EqualityAct. These are disabil-ity, gender reassign-ment, marriage or civilpartnership, pregnancyor maternity, race,religion or belief, sex-ual orientation, sex(gender) and age. Mediators need to be aware thatunlawful discrimination can occur across any ofthese areas, and alert to the need for the resolutionof workplace and employment disputes involvingany of these issues.

The use of mediation in discrimination complaintsThis article seeks to examine the use of mediationin discrimination complaints in the employmentfield. Discrimination complaints are particularlydifficult and sensitive disputes, and often run overmany days in the Employment Tribunal. Under-standing the opposing and shared concerns, the dif-ficulties and motivations for each participant to alegal dispute, is key to assisting parties to find aresolution through mediation.

Over the years I have been struck by the impact on

the individual complainant of bringing a complaintof discrimination, or of believing that one has beendiscriminated against. It is very difficult for an em-ployee to raise such issues and difficult for a com-plaint to be dealt with to everyones satisfaction. Irefer here, not just to the employee who com-plains, but for the employer or those that are al-leged to have discriminated. If we combine theanxiety and difficulties which exist for a complainerwith the reaction of the alleged discriminator thenthere is, before we even start to try to investigatethe issue, a considerable combined emotional ele-ment involved. This is heightened by the way inwhich the usual adversarial system of complaint andrebuttal deals with the need to prove or defend theallegations. This process and the experience of go-ing through it, is often very unsatisfactory for all

involved. Discrimination does occur and there are occa-sions when it will be necessary to seek to establish dis-crimination through the internal grievance or EmploymentTribunal process. Perhaps the case will establish a legalprecedent- the law is not clear cut and the employee isprepared to run the case. Perhaps it is a matter on which

the finality of a judicial de-termination is needed, foreither or both the employeeand employer. Or in somecases of serious harassment,discrimination or victimisa-tion it may not be consideredappropriate to use mediationfrom either the employee orthe employers perspective.

The view may be taken thatsuch serious allegationsshould be investigated andtested, and indeed defended.An employer may considerthat they need to take astand on a particular allega-tion.

Setting the scene for mediationWhether or not mediation is being contemplated, protect-ing an employees legal rights is essential, and in fact canbe helpful in terms of creating a climate in which parties

are open to the idea of mediation. From the employeespoint of view, they will be told to submit a written griev-ance or a claim to the Employment Tribunal within thestatutory time limits. Knowing that their legal rights areprotected, allows them the opportunity to explore alterna-tive ways to resolve the dispute. Equally employers willwant to protect their position. These should not be viewedas inflammatory steps that preclude or hamper the possi-bilities of mediation. Unfortunately due to very short timelimits and the lengthy nature of the investigation of dis-crimination complaints, it will not be unusual for an em-ployee to have to submit a claim, and an employer to haveto respond, while there are ongoing internal proceedings

or proposals to mediate being discussed. Handled sensi-tively, the wish to continue to try to resolve matters out-with the Tribunal can be communicated between the par-ties and with the Tribunal. Indeed the power and successof mediation is often set against the knowledge that boththe employer and employee can revert to the legal processif necessary. Assuming then that any appropriate stepshave been taken to protect an employees legal position,can mediation be a good option, and if so why?

Handling discrimination complaints through the work-place grievance systemThe nature of complaints of discrimination means that

they often lead to lengthy investigations and long runningTribunals. Whether or not discrimination can ultimatelybe established as a matter of proof, those who have madethe complaint of discrimination within the workplace may

Balancing Act: The Use of Mediation in Discrimination Complaints

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have genuine concerns about discriminatory attitudesor actions, or genuinely be unable to understand or ac-cept the explanation provided for the way in whichthey believe they have been treated. Equally, therewill be times when discrimination is not in fact takingplace, despite someones perception. How do youhope to properly investigate these perceptions of dif-ference in treatment within the confines of an adver-sarial workplace grievance system and against the back-ground we have considered above? It can be fraughtwith difficulties.

Determining when unlawful discrimination has takenplace is not an easy process. There are many complexdecisions in our case law which have explored how andwhen Employment Tribunals can make a finding thatdiscrimination has taken place. This means that lay per-sonnel assigned to investigations and decision making

within organisations in connection with such complaintshave a difficult task. If we set this task against a back-ground, where an employer feels defensive, very possi-bly shocked, and even angry or upset, by the allega-tions being investigated, then subconsciously or other-wise, it may be that it is more likely that the employerwill be looking for an explanation that counters or ex-plains away the allegations, rather than one which sup-ports them.

In some cases of course there will be a reasonable ex-planation. But how easy would it be to make the findingthat discrimination has occurred? There may be some

admissions about matters that have been unsatisfactor-ily dealt with, or an acceptance that someone couldhave behaved differently, or even behaved badly. How-ever this is usually with the caveat that this is how theytend to treat everyone. There may be some referenceto perceptions- but rarely a clear cut finding that dis-crimination has taken place.

This process can take a long time. Relationships in theworkplace deteriorate in the interim, and in many in-stances, unles the employee is very strong and resil-ient, the employee complaining of discrimination willend up off sick. Work colleagues can become resentful

of the investigation. This impacts on the workplace.Those other employees may also end up off sick. Thiscreates further difficulties, and delay to the process.Thus even if the finding was a positive one for thegriever- at the end of this process- things will havebecome very difficult if not impossible for all con-cerned. If the matter goes further and enters the Em-ployment Tribunal, then this has the potential for evenmore damage to be done.

Issues to consider in contemplating mediationIt is within this context that some important questionsmay need to be asked for an employee. What are thechances that the employee will get what they want orhope for from the standard procedures and processes?What in fact are they likely to achieve, and how far thiswill match their expectations? What impact will the

process have upon them as individuals, upon theirfamilies, and their relations at work? Even if success-ful, will the outcome or how they feel at the end of it,be what they wanted?

Aside from the impact on the individual, there may beadditional considerations. Will the finding at the endof the process do anything to actually address what isthe underlying concern? How does the process improvethings, if at all, where in fact discrimination may betaking place? Or where an employee is feels stronglythat this is the case. Will anyone actually understandwhat the difficulties are and how these might beavoided in the future? Will a very lengthy grievancefollowed by an appeal if the outcome is not in favourof the employee, followed by a full hearing at the Em-ployment Tribunal provide the outcome, answers, orjustice that the employee seeks?

In my experience the litigation process can oftenleave employees, and indeed employers, feeling dis-satisfied. I think for the employee, by virtue of theirposition as an individual, rather than a representativeof an organisation, or being part of the corporate ma-chinery with the support behind that, the personal tollcan be heavy. The process can leave the employeefinding it difficult to move on and to achieve closure.That can then be a problem for both the employeeand the employer. It is also true that individual em-ployees who are involved in the allegations of dis-crimination will be seriously affected by the process.

As will the representatives of the employer who willhave invested much time and emotion in the manage-ment of the dispute. The process is an arduous one,whatever the outcome, and relationships are rarelyleft intact at the end of it. In some cases it may beright or indeed necessary that this process be followedfor any of the reasons discussed before. Or because anindividual believes that it is correct for them. How-ever, in other cases mediation may provide a muchbetter alternative to continuing through the adversar-ial process.

Wherever there is an ongoing employer/employee re-

lationship it must be arguable that mediation shouldat least always be considered by both the employerand the employee. This approach has effectively beenendorsed by the current judicial mediation scheme inthe Employment Tribunal in Scotland, where any claimthat includes a complaint of discrimination and islikely to last for three days or more in a full hearingwill be considered for suitability for mediation. Thatthere is an ongoing employer/employee relationship isa critical factor in the Vice President decidingwhether judicial mediation will be offered.From a procedural point of view there is nothing toprevent mediation taking place. It can be used at anystage of the dispute. It is usually said that it is bestused at the earliest opportunity, but in some cases,for example, it might be considered from either theemployee or employers perspective that an investiga-

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tion is necessary prior to mediation. The parties legalposition can be protected and the employee and em-ployer can revert to internal procedures or the Tribu-nal if necessary.

Benefits of mediation

Mediation can be a good alternative to the adversarialsystem because it has the potential, from an em-ployee perspective, to give the employee more ofwhat they might be looking for than the other scenar-ios offer. Both participants are normally offered thechance to present their view of the matters in disputeat the beginning of the mediation, and an explorationof this may continue as part of the process. This of-fers a unique opportunity for an employee to havesomeone relatively senior within the organisation heartheir story. The mediator and or employee advisorhas a crucial role in enabling the employee to presenttheir concerns in a professional and credible way thatwill encourage this listening. This can enable the em-ployer to really listen to the employee, and to openlyunderstand where the employee is coming from. Theycan do so without the fear that to listen and hearmight lead to an admission of liability or weaken theirdefence. For an employee this may be about theirperception or belief that they have been treated dif-ferently, about what exactly it is that has been said ordone and why they believe it caused them a detri-ment based on their protected characteristic.

Rather than the employer feeling obliged to immedi-

ately defend or explain away the behaviour, or ac-tions, mediation opens up the possibility for the em-ployer to listen and indeed to ask questions. It offersthe possibility for the employer to gain a better un-derstanding of the employees point of view and thisis so important in discrimination complaints. It is alsoa critical component in what it is hoped can beachieved as part of the mediation on the road to as-sisting parties to reach a resolution. Mediation thenprovides the opportunity for the employer to respondappropriately. Now it is time for the employee to lis-ten and hear. These steps can then lead to both sidesunderstanding each others perspective. This process

has the potential to achieve a more effective outcomefor all concerned.

In discrimination complaints the employee often wantsthe employer to understand their position, to ac-knowledge what has happened, and to ensure that itdoes not happen again in the future to them orsomeone else. Mediation does offer the employer thechance to give some recognition to the employeesconcerns or feelings, something that is not often possi-ble in the adversarial process. Any such understandingand recognition together with an agreed outcome overwhich the employee has some control may in fact be

more empowering for an employee than the alterna-tive. If an employer merely offers a monetary settle-ment to bring a complaint to an end, then this maychange nothing. There may from the employers point

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of view be nothing to change. However the fact thatthe complaint has arisen in the first place, and thatmatters have got to the stage of needing mediation,suggests that there are issues being raised by the em-ployee that are worth considering, even if it is not ac-cepted that they amount to discrimination. Thus

through mediation, the parties can begin to build anagreement and action plan that may assist the em-ployer and the employee to find resolution and bring anend to the dispute with the relationship intact. Thisopportunity to find a creative solution may bring morebenefit than compensation alone could bring. It will beapparent already that for employees, many complaintshave more to them than a desire for compensation.

When the employer/employee relationship has cometo an endEven where the relationship has or will come to an end,it may still be important for an employee to have theemployer understand their concerns and perspective.This can make a difference to how the employee feelsabout or can respond to the future. Mediation there-fore has the potential to resolve outstanding issues atthe end of a relationship, or to bring a relationship to amore satisfactory conclusion. The effect on the em-ployee of the treatment they complain of may havebeen quite damaging. Settlement in purely monetaryterms does not always bring the closure and resolutionneeded by the employee to move on into other healthyworking relationships, or continue on their career path.It can be necessary to put the experience into context

and to get closure so as not to impact on future rela-tionships. From the employers perspective, there willoften be a sense of relief in finalising matters, of bring-ing a difficult dispute to an end. However from both areputational and organisational point of view, endingthe relationship following mediation may conclude mat-ters in a more amicable way. It may bring confidential-ity which is welcome. It may even leave the organisa-tion in a better place, with critical learning, and ac-tions that can be taken to prevent further complaints.

Lawyers are required to present and defend discrimina-tion cases in strict legal terms, free of emotion, bar the

need to prove the hurt and offence caused by the al-leged discrimination. Discrimination complaints how-ever are filled with emotion, differing perceptions andinterpretations. How is that emotion dealt with withinthe formal legal process, and how do employees andemployers begin to understand where each is comingfrom? Proof and defence of primary facts can focus theissues in dispute however it probably does not deal withthe hurt and emotion, or best enable learning from theperceptions of others. For this and the other reasonsset out above, mediation must always be worth consid-ering, and may in some cases have the potential for themore effective resolution of discrimination complaints

from both and employee and an employers perspec-tive.Kathleen Bolt is a Member of the Scottish MediationNetwork, and is a registered Mediator and lawyerwho specialises in discrimination cases.


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THREE PLACES REMAINING

Mediation Conversion Course:

Workplace Mediation

Scottish Mediation Network is hosting a new2 day conversion course on 2-3rd De-

cember. Workplace mediation appears to be one of the fastest growing areas ofpractice and SMN has detected increasing interest from the membership in such aconversion course.

This is an ideal opportunity for established mediators with experience in Commu-nity, Family or other mediation to widen their field of competence. The course isalso likely to be of interest to those who have some experience of dealing withworkplace conflict through a managerial function, or have been involved with in-house mediation.

The course equates to 12 Hours CPD over 2 days and will be delivered by CharlieIrvine and Jeremy Scuse of Catalyst Mediation Ltd., both highly experienced me-diators and trainers in the field of workplace mediation.

Introductory cost for the two days is 350 for non-members, 300 for members,inclusive of course handouts, lunch and refreshments. No VAT is charged.

Organisations booking 2 or more delegates are eligible for a 10% discount

Who Will Benefit?

Any mediator wishing to develop a skilled practice in Workplace Mediation

40 Members, 60 Non-Members

For more information or to book a place on the course please [email protected] with your contact details or call 0131 556 1221


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Tender NoticeOrganisations and Individuals who are members of the SMN Register and are able to deliver me-diator training are invited to tender for the provision of a 6 week part-time evening MediatorBasic training course.

The 30 hours of Mediator training are to be delivered in 2 weekly sessions lasting two and ahalf hours. The training must comply with the SMR benchmark standards. The training shouldbe suitable for:-

Professionals who wish to become accredited mediators

Organisations wishing to establish in house mediation teams

Managers and Senior Managers who wish to improve their conflict resolution skills

A detailed explanation of your quality assurance processes should be provided. Mediation

Training Providers who have their courses externally validated by independent accredi-

tation bodies such as OCN, Napier University and the Scottish Qualifications Authority

are exempt.

Tenders should be delivered to the Scottish Mediation Network to [email protected] by 12 noon on 8th December 2011. The course should be run

over 6 weeks, 2 evenings per week.

Do you want to train as a mediator at a time that suits you?

Expressions of Interest are sought from individuals or organisations who might wish to book aplace on our forthcoming Part Time Evening Mediation Course.

Part Time Evening Mediation Course

The Scottish Mediation Network will be offering a 6 week part-time evening training course forprofessionals who are interested in becoming Registered Mediators. The course will meet the

benchmark standards for the Scottish Mediation Register. The training should be suitable for:- Professionals who wish to become accredited mediators

Organisations wishing to establish in house mediation teams

Managers and Senior Managers who wish to improve their conflict resolution skills

The course will run from our Edinburgh office two evenings per week from end of January2011.

Individuals and organisations who might be interested in booking a place on this training course

should send us an email expression of interest to [email protected] you wish to speak to someone about the course, please call us on 0131 556 1221.


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ADVERTISEMENTSCOTTISH LEGAL COMPLAINTS COMMISSION (SLCC)

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The Scottish Legal Complaints Commission (SLCC) requires 3 non lawyer members to becomepart of their Board with effect from February 2011. The successful candidates will be ap-pointed by Scottish Ministers in consultation with the Lord President of the Court of Session.

As a non lawyer member you will have the ability to apply objective and impartial judgementto the resolution of disputes, have the ability tooffer guidance on one or more of the followingCommission activities: regulation, consumer rights, consumer advocacy, consumer needs andhave the ability to contribute to an effective team.

The SLCC was established by the Legal Profession and Legal Aid (Scotland) Act 2007. The mainfunctions of the Commission are to resolve complaints alleging inadequate professional service

or negligence by legal practitioners, to refer complaints which allege professional misconductor unsatisfactory professional conduct to the relevant professional body and to promote goodpractice in complaints handling.

Remuneration: 209 per day. Travel and subsistence costs and reasonable receipted child-care and dependent carer expenses directly related to the Commissions work will be reim-bursed.Term of appointment: 5 years.Time commitment: Up to 6 days per month. Around one third of the time spent on the workof the Board and two thirds on complaints.Location of meetings: Scottish Legal Complaints Commission, The Stamp Office, 10-14 Water-loo Place, Edinburgh EH1 3EG.Closing date for applications is 29 November 2010

For full details and an application pack please see our website at:www.scotland.gov.uk/Topics/Government/public-bodies/current-vacancies

Alternatively, application packs can be obtained by contacting the address below. You shouldprovide your name, address and the appointment that you are interested in.Applications should be e-mailed to: [email protected] return by post to:

Scottish Government,Human Resources Shared Service Centre (Public Appointments)Saughton House (E1 spur)Broomhouse DriveEdinburghEH11 3XDFreephone: 0800 015 8449Fax: 0131 244 3833Appointments to the Scottish Legal Complaints Commission are regulated by the Commissionerfor Public Appointments in Scotland. All applicants must complete and submit the applicationform contained in the application pack in order to be considered for appointment. Please

note that application forms sent electronically will be in Word format and, if returning elec-tronically, will only be accepted in that format.Appointed on merit; committed to diversity and equality


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Bob Ironside is a new member of the Scottish Media-tion Network who wishes to register as a mediator.He has extensive experience as an HR professionaland has recently trained with the TCM Group inworkplace mediation. He has passed his practicalassessment and is currently finalising his portfolio forfinal assessment and qualification.

In order to help him meet the SMN eligibility require-ment of participation in at least two mediations withan experienced mediator following initial training,Bob has asked us to publicise a request for him to beable to observe, assist or co-mediate at an appropri-ate mediation with an experienced member of the

SMN register.

If you think that you may be able to help Bob gainthe initial experience he needs, please contact himon 07967 732101 or at [email protected]

Numbers

300 millionthe cost of stressrelated absences

from work to Scot-tish Employers last

year

58,302,969the cost of litigationto Scotlands localauthorities and the

health service

90%Of mediation settle-ments are compliedwith compared with67% for court deci-

sions

23.4%

of the claim value,the World Banks

estimate of litigationcosts

20Days on average wasrequired to get fromreferral to disposal

for mediation casesin scotland

4%

of the claim value,the average cost of

mediation

CMC clears path for SMN

The Civil Mediation Council has recentlyamended its constitution to recognise theScottish Mediation Network as being the ap-

propriate body for mediators in Scotland andhave stated that "the Board is limiting itsgeographical area of concern to England andWales. In view of the devolution of the rele-vant government functions in Scotland andNorthern Ireland it seems to the Board to beinappropriate if not impossible for the CMCto act as the voice of those mediation com-munities to government.

Help requested

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New Staff At SMN

SMN has appointed 2new members of staff,

they are:- KathleenKing, Business Develop-ment Officer and RuthDuffin, Campaigns andFundraising Officer.Kathleen and Ruth canbe contacted on 0131556 1221.

Awards

SMN was Highly Com-mended in the categoryof Best Practice 2010 forour Peer Mediation Pro-ject with West LothianCouncil which was run byCarol Hope, SMNs PeerMediation DevelopmentOfficer.

Carol is picking up a bar-rel load of award nomi-nations for her work with

Looked After Young Peo-ple and has gathered innominations for COSLAand CEDR awards.

STOP PRESS - Congratulations CarolNews has just come into the office that Carol Hope has won the Tony Curtis

Award for the best Initiative for Effective Management of Conflict at the CEDR

awards ceremony which was held in London last night.

Carol was up against some stiff opposition including the All Party Parliamentary

Group on Conflict Issues, EDF the Energy Company and Tokiso who facilitated

discussions between the City of Johannesburg and the taxi industry.

This is the latest in several awards which Carol has secured for the Network for

her work with looked after children and young people and their families in West

Lothian.


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Foreclosures, where a lender sells a home andrecovers the entire sale price, are very rare inScotland. However repossessions, where thelender takes possession of the home deprivingthe family of right to live there, have soared asa result of the financial crisis and many esti-mate that the numbers will grow if there is anysignificant rise in unemployment or widespreadloss of income.

Research released by Shelter Scotland indicatesthat one in six homeowners in Britain are strug-gling to pay their mortgage, a 78% increase inone year. Further to this, one in three home-owners in Scotland report to be living with theconstant worry of how to pay their mortgage.

The Financial Services Authoritys recommendsthat: lenders need to fully explore alterna-tives to repossession and must ensure an indi-vidual consideration of the circumstances of

any borrower in payment difficulties.

Repossession should only be considered as alast resort. Given the success of mediation inAmerica for foreclosures, it is clearly an optionthat should be more closely examined by lend-ing authorities in the UK when dealing with re-possessions.

Ruth DuffinScottish Mediation NetworkCampaigns Officer

Mediation has had exceptional success in America

and is now embedded in American culture. Thisalso extends to foreclosure mediation, with figuresdemonstrating that participation in mediation hasled thousands of families being able to stay in theirown homes. Mediation allows borrowers to meettheir lender face-to-face to try to reach a settle-ment on an overdue mortgage. It provides an op-portunity for homeowners and lenders to discussalternatives to foreclosure.

Mediating a foreclosure action is fast, inexpensive,and cost effective. Mediation is a give-and-take

process that lets the homeowner and lender withthe assistance of a trained mediator seek a mutu-ally acceptable resolution to their mutual di-lemma. By working together to explore the variousoptions, agreements are often reached:

Connecticut 60% of families participatingwere able to stay in their own homes.

Nevada option of using a mediator to ne-gotiate with their bank when a homeownerreceives a notice of default. 85% of partici-pants claimed success, including home loanmodifications.

Hartford 35% of those eligible have par-ticipated in the mediation programme. 60%of participants reached a settlement to stayin their own homes, 41% of which receiveda loan modification from the lender. A fur-ther 14% decided to leave their home, butwere able to reach an agreement with theirlender to pay off the balance of their mort-

gage.

Florida 75% of participants were able tocome to a successful agreement with theirlending authorities. In the past year, thisprogramme received participation from 43%of home owners facing impending foreclo-sure.

The success of foreclosure mediation in the USA

The Scottish Mediation Network is a registered Scottish Charity No SC034921 and a Company Limited by GuaranteeRegistration No SC258173. The registered office is 18 York Place Edinburgh EH1 3EP. Telephone 0131 556 1221

www.scottishmediation.org.uk

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