Letters to the Editor

MEDIATION FEARS

Following Hurst v Leeming [2002] Lloyd's Rep PN 508, a refusal to mediate will only be justified if it can be demonstrated that mediation would have no real prospect of success.

Therefore, a refusal to mediate is a high-risk strategy with adverse cost consequences.

Why should this be the case?

I recently attended a seminar about mediation.

The speaker informed us that mediation was simply one tool at a solicitor's disposal to help resolve a dispute.

The speaker also informed us that mediation was not a panacea: it cannot help resolve all disputes.

Two things follow from this.

Firstly, litigation and mediation are forms of dispute resolution to help resolve a dispute.

The main difference between these forms of dispute resolution is that one is imposed rather than an agreed outcome.

The parties should be at liberty to choose the form of dispute resolution.

Secondly, since mediation cannot help resolve all disputes, litigation should be the default form of dispute resolution.

If one party does not want to mediate, so be it.

Still, the parties should be encouraged to mediate if appropriate.

The object of any form of dispute resolution is to resolve the dispute.

It is not to penalise one party for refusing one form of dispute resolution over another.

The parties have enough to consider as it is.

If litigation is such a bad form of dispute resolution that a court has to advocate mediation, maybe we should be looking at reforming the procedure again.

Jonathan Reed, associate, Fox Hayes, Leeds

REGULATION IS KEY

As Law Society chief executive Janet Paraskeva stated in her column, the key to the success of expanding opportunities for employed lawyers is the right kind of regulation (see [2003] Gazette, 20 February, 20).

The Society must maintain its control over the education, training, regulation and conduct discipline of solicitors, however employed or engaged.

The time has come to ask whether all solicitors should be required to incorporate their practices (unless they are solicitor-advocates, who should have a similar regime to that of barristers).

Given that there was incorporation, then there could be insurance for dishonesty of officers and employees on standard terms for the benefit of the customers.

And it would be much simpler to have a single basis of regulation for what are solicitor's firms and the new quasi-solicitor organisations.

If this were done there would be no need to impose on solicitors and quasi-solicitors' firms the solicitor client account system with its expensive auditing process.

Given that corporate solicitors and quasi-solicitors' firms would all have to carry standard insurance for errors and omissions as well as fraud and dishonesty, there could be material savings in the expense of the present system.

It would be necessary to provide for solicitors and quasi- law firms to produce their accounts for audit and filing at Companies House and with the Society, which could still have the power to send in monitoring teams if the annual accounts were not filed in time or disclosed cause for disquiet.

Likewise, monitoring teams could always be sent in as a result of a finding of improper charging to see whether the problem extended to other clients once an adverse finding had been made.

John Franks, William Sturges & Co, London

BACKING TECHNOLOGY

Derek Sturdy's obvious lack of faith in knowledge management technology in no way reflects reality for many law firms (see [2003] Gazette, 20 February, 11).

Well-designed knowledge management solutions are not meant to create extra work - or jobs - for temporary staff as Mr Sturdy implies.

Effective knowledge management is about reducing the time people spend searching and retrieving information, or communicating best practice.

Far more effective than passing research to a professional support lawyer down the hall is giving fee-earners the ability to access information within minutes from their own desktops.

Mr Sturdy seems to believe that this technology is ultimately flawed as it does not have the legal know-how backing it up.

This may be true in certain cases, but there are knowledge management solutions available now and in daily use by leading law firms, which are tailored to meet the legal industry's needs.

Good technology, effectively deployed, will always achieve more than even the most efficient professional support lawyer, in far less time and for a fraction of the cost.

Geoff Hornsby, business development manager, iManage, Guildford, Surrey