By Ian Walker, Mediation Panel Member
We all know that in principle mediation is a good idea. We all know that we have good mediators practising in Devon and Somerset including DASLS civil mediation panel.
However, the flow of good mediation referrals is seldom as good as it should be. As lawyers, we often finding excuses not to refer to mediation. The primary excuse is that if mediation fails, the costs of the mediation will have been wasted. Sometimes there are issues of principle – which need to be determined before serious negotiation can commence.
My own perspective on mediation is that I was trained as a family mediator in 1996 by Henry Brown (co-author of Brown and Marriott – ADR: Principles and practice; perhaps the leading text on the principles of dispute resolution – both civil and family). I was subsequently trained by Henry as a civil mediator. I am also a child law arbitrator – being a member of the CIArb. As a family law solicitor I am the Chair of the Devon region of Resolution (formerly SFLA).
I am currently a member of a working party of the Resolution’s national Dispute Resolution Committee where we are tasked with amending Resolution’s mediation contract – The Agreement to Mediate to incorporate/normalise the combination of mediation with arbitration. Whilst the DASLS mediation panel only deals with civil mediation, the benefits of combining mediation with arbitration are the same.
Combining mediation with arbitration means that if the mediation becomes stuck then the mediation can move seamlessly to arbitration where an arbitrator will make a legally binding decision (the legal basis of arbitration is set out in the Arbitration Act 1996).
We have looked at different models of and have rejected the model of Med-Arb where the mediator becomes the arbitrator. There are good reasons for this but not enough space here.
To combine mediation with arbitration simply requires the parties to sign the arbitration referral form – ARB1 prior to the commencement of mediation – so that arbitration becomes the automatic fall back, or to sign the form at the point in the mediation where it is clear that matters are stuck. The combination means that if the mediation does not succeed then the case can move to a determination in arbitration seamlessly.
Together there is a genuine and very attractive alternative to litigation. It is also very possible for the mediation to adjourn whilst a point of principle is decided – and then for the mediation to resume after the arbitrated decision – in order to resolve outstanding matters by agreement.
Arbitration is a flexible and quick and bespoke dispute resolution process, however it doesn’t provide the benefits that flow from a negotiated agreement.
In my view the combination of mediation with arbitration gives the best of both worlds. Next time you are thinking about a mediation referral, why not ask your mediator about the benefits of mediation with arbitration?
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My previous report for the November Newsletter was written just before the CILEx Devon branch Autumn Ball and the DASLS Somerset dinner. Both were most enjoyable. It was a pleasure to attend the ball hosted by Devon Branch Chair Gemma Rowe and to meet, amongst other guests, CILEx National President Philip Sherwood, DVP Craig Tickner and immediate past National President Millicent Grant. Every aspect of the Somerset dinner held on 2nd November went as well as I was hoping it would. Over 100 member and guests attended and everyone I spoke to appeared to be having a good time. Denis Burn was great company and gave an entertaining insight into his role as High Sheriff of Somerset in his after dinner speech. In mid-November, I was in Leicester for the national Local Law Societies’ Conference. Leicester President is Bushra Ali. When she first expressed an interest in a career in the Law, she was told she had little chance of fulfilling her ambition, being British-Asian and female. Despite that advice, she now runs her own firm specialising in immigration and family law and has twice won the Leicester Law Society Award for Solicitor of the Year. I find this truly inspiring. Bushra and her team put on an excellent event both in terms of the speakers and topics covered at the conference itself, the drinks reception the evening before and the formal dinner afterwards. The whole event was held in the historic centre of Leicester around the cathedral where the remains of Richard III have recently been reinterred. The City has certainly made the most of the discovery of the King’s remains in 2012. The Richard III Centre which hosted the drinks reception is an impressive modern museum incorporating the site of where the remains were unearthed and is a must visit attraction for anyone with an interest in the War of the Roses. With Leicester being one of the members of our County Societies’ Group, the conference also provided a convenient opportunity for a CSG meeting. Tony Steiner and I attended for DASLS and there were representatives from Newcastle, Kent, Surrey and, of course Leicester. L-R Jon Pitt (COO Kent), Clive Thomas (President Cardiff), Stephen Mahoney (DASLS President), Bushra Ali (Presidentn Leicester), Rachel Harefield (Senior Vice President Cardiff) and Tony Steiner (DASLS Executive Director) The first week of December saw a flurry of presidential activity, starting with a working group meeting at Grow Marketing for the 2019 DASLS Legal Awards Dinner. Following on from that meeting, it was gratifying to hear, just before the Christmas break, that a new headline sponsor was on board, sponsors for all 13 categories were in place and we have a full panel of 9 judges. Anecdotal evidence from various sources says sponsorship is harder than ever to secure and we owe a huge debt of gratitude to Alice Bryan at Grow for the incredible effort she has put into achieving full sponsorship of our Awards. To top off the good news, there were more category nominations than ever before with the newest, CILEx Member of the Year, being particularly well supported, fully justifying its inclusion for the first time. After the awards working party meeting , I chaired the second of my main committee meetings, this time on home turf at the Cleeve Hotel in Wellington. It was particularly pleasing to have Ben Butterworth, new co-chair of JLD and Gemma Rowe and Sarah Summers from CILEx in attendance, talking about closer communication and cooperation on future social events. Finally that week, I was at Michelmores in Exeter for a Women in Law Men’s Group meeting. Law Society Vice President Simon Davis chaired a stimulating discussion around what is a major theme of Christina Blacklaw’s Presidential Year. So that is 2018 out of the way. What does the start of 2019 hold in store? Well for January our Awards Judging Panel will be meeting to sift through ...
The latest round of The Law Society’s campaign for gender equality came to town in December with a Men’s Roundtable in Exeter chaired by the national Vice-President Simon Davis. The meeting challenged us to consider our behaviour identifying the unconscious bias that can be inherent in business practice. Start by asking yourself does every activity organised in your office genuinely appeal to all genders – entertaining clients at the Rugby and so forth - and you begin to see the issue. The meeting proved to be far more informative and interesting than I had anticipated. At the recent DASLS Admissions Ceremony only one of the recently qualified solicitors was male. The national statistics show that 62% of recently admitted solicitors are women who now represent more than 50% of Practice Certificate holders. Change is here and those firms that will succeed in the future will embrace new ways of working that accommodate the greater diversity in their workforce. Entries for the 2019 DASLS Legal awards has now closed with more nominations having been made than ever before. The Judges meet in January and a shortlist will be published later in the month when tickets will also be on sale. Twitter followers will know that a menu tasting for the Awards event has taken place. It is shaping up to be a truly memorable experience. The Social Sub-Committee have been busy and the final Challenge Cup event for the 2018/2019 year is the traditional quiz night on 29th January. It was not possible to run the 5-side-football this year. At the time of writing I have not started setting the questions so look out – plenty of time to come up with some tough rounds. Best wishes to you all for 2019 which promises to be as interesting as the last two; Monique is looking forward to having settled status! NOVEMBER 2018 CAPTION COMPETITION Congratulations to John Busby! ...
Why did you join the Devon & Somerset Law Society? As Chair of the Devon CILEx branch, it’s important that there is interaction between our local CILEx Branch and DASLS to enable us to provide feedback from our CILEx branch members and to bring together both groups of lawyers. During 2018, I attended many of the main DASLS Committee meetings as an observer. I have really enjoyed attending those Committee meetings as it has been a great opportunity to find out how much work the DASLS Committee and Sub-Committees are involved in and to meet those Committee members and attend some of their socials events. What is your dream job? A racing car driver! What has been the most embarrassing moment during your professional career? I passed out at the start of a scar revision surgery seminar after seeing images of scarring in the presence of several Consultants, two of whom I had wanted to meet in person as I was (and still am) instructing them regularly. Despite working in the personal injury department and sitting down at the time, I apparently slid off my seat onto the floor. I was taken out of the room and asked not to return! Which sort of work gives you the most job satisfaction? I act for the injured party in the personal injury department at Ashfords Solicitors, seeking to recover compensation on their behalf. I am always thrilled when I have been able to achieve a good result for the client. Some of my clients have suffered severe accident related injuries, with their effects being lifelong. Whilst compensation is never going to put them physically in the position they were in prior to their accident, the purpose of the compensation is to enable them to have access to the private treatment and care they require and make sure they are financially secure by having funds that will cover all of their past and future financial loss needs. What gets you up in the morning? My alarm clock… Unfortunately I am not really an early morning person. What do you do in your spare time? Outside of work, I am Chair of the Devon CILEx branch. I meet and liaise with committee members regularly so as to ensure the smooth running of all our events and the branch in general. I also like to play the violin. I have been playing on and off since primary school. I am currently playing some classical and folk music. What book are you reading at the moment? I am not currently reading anything at the moment, but you can't beat a good chick flick of a book which makes me laugh. I like a book that I get so stuck into reading I literally can't put it down. What are your favourite food / restaurant? A roast dinner. I am also very keen on a medium to well-cooked steak with garlic butter and of course, chip shop fish and chips. Where is your favourite holiday destination? In 2015 I went to East Africa on Safari. It was the best holiday I have ever been on. I would definitely recommend it and would love to go to Africa again. I also really love Italy. The food is always amazing and there is always lots of beautiful Murano glass items to buy. What is your favourite pet? A guinea pig. Which famous person, dead or alive, would you most like to spend a day with? Vanessa Mae - She is an amazing violinist. I would love to get some great playing tips from her and have an opportunity to play her electric violin. Tell us an interesting fact about yourself. Over the last couple of years, I have attended short courses in baking, Italian cooking and cake decoration, although have not put all of my skills quite into action yet. I also really like cars and would love to own a Ferrari….. Maybe one day. ...
In 2018, the trustees revisited the criteria of the award to keep pace with the ever changing process of how candidates qualify to be solicitors. Traditionally and in the case of larger firms, individuals still qualify through university degree and training contract as well as the LPC and PSC from the SRA. It is increasingly common with smaller firms and Local Authorities that people qualify as solicitors through a more vocational route. For example qualification through conversion from CILEX meaning that while individuals have no law degree and did not undertake a training contract in the traditional sense, they have nonetheless undertaken an academic training and received very considerable practical experience in the law such as to satisfy the exacting standards of the SRA in qualifying as a solicitor. In addition, in future years there will be solicitors who qualify through the apprenticeship route. Often such potential candidates will have achieved solicitor status while combining study with work and families and deserve recognition. Given the original charitable purposes of these trusts, the Trustees want to ake sure they do not overlook such candidates, some of whom may come from backgrounds where they might have needed to work from school rather than pursue academia. Candidates for this year’s Prize must have been admitted to the Roll during the 12 month period ending on 31 May 2019 and nominated no later than 30th June 2019. The definition of Somerset for the purposes of the prize, includes Sherborne and the local government administrative areas of Bath and NE Somerset, North Somerset and, of course, Somerset. Personal Information Please give full details of the person whom you are nominating and confirm that they are content for their details to be publicised by DASLS including photographs, should they be successful. Please submit your name and work contact details, title and why you are nominating this person. The Trustees are looking both for academic achievement / distinctions along with other examples of “merit”. This may include (by way of illustration only) initiative in the workplace or community/charity based projects and engagement that, for example, raises the positive profile of the profession, supports other young lawyers or the wider community. Please give specific examples of how the nominee has exceeded the normal expectations of a person who is building their career. In short, the successful candidate will have shown real “merit” and not only achieved what is expected. It would be helpful to the Trustees, when considering the nomination, to have as much information about the nominee’s achievements as appropriate. Summary The Trustees wish to encourage eligible nominees to have their names put forward as the award is prestigious and well recognised as an achievement. Please send nominations in writing to DASLS Administrator, Monique Bertoni, by 28 June 2019 for consideration by the Trustees. The prize/s will be awarded at the DASLS Somerset Dinner in November this year....
Dear All, This year really is flying by. I have just had my birthday. After updating you previously on the excellent catch up I had with the Law Society CEO Paul Tennant on his visit to the south west last November, I had not expected to be back in touch with him quite so soon. Sadly, this time it was in less happy circumstances. I was, like many of you, shocked and saddened in January to hear the news and see the pictures of the substantial fire at Chancery Lane in London. I have emailed Paul Tennant and James Shepherd, our Law Society Relationship Management Executive, to send our best wishes and we are hoping that the building will be back to full use very soon. As I write this report, preparations are in full swing for the 2020 DASLS Legal Awards & Dinner. As you know the Annual Dinner is being held again this year at Exeter Cathedral. The event is to take place on the 30th April 2020. After the success of last year, we are hoping that once again the event is sold out which would mean we will have around 480 people attending. If you have not done so already, please contact Llew Nicholls and the team at our Awards partners ‘Grow Marketing’ who have worked very hard alongside our very own Tony and Monique to achieve full sponsorship of this event. You can contact Llew to book the remaining places by emailing Llew directly at Llew@growmarketinguk.com. There have been more nominations than ever before with more entries making the short list. Please do not miss this dazzling occasion. You will all have received DASLS latest 2020 training courses programme. Tony Steiner and the team have worked hard to arrange these events. You will see that as members you get preferential rates and if appropriate reduced rates for multiple attendees from your firms. Please take advantage of these services as a proportion of the monies do go to support our Society’s broad continuing education offering. If I do not see you individually before I look forward to catching up with you at the 2020 DASLS Legal Awards and Annual Dinner in April. With very best wishes Nigel Lyons President 2019-2020...
The first big social event of the year was the annual DASLS Quiz which is the grand finale of the Challenge Cup. It is an event I thoroughly enjoy and I make no apology for making it a bit challenging. This year did not disappoint there being just ½ point between first and second place and resulting in joint winners of the Challenge Cup. Congratulations to Ashfords and Michelmores both of whom knew that the study of birds’ eggs is Oology. The next Challenge Cup kicks off with the usual Skittles match in Dawlish when the magnificent Skittles Cup will be contested. The latest meeting of the County Societies Group took place in February when we were guests of the SRA in Birmingham. DASLS Deputy Vice-President Adrian Richards and I attended. We were welcomed by their Chief Executive Paul Philip who set out some key messages around SRA activity emphasising their desire for light touch engagement with solicitors and good channels of communication. He said that the SRA was working well with The Law Society and was focused on creating an environment where solicitors could be innovative and use the latest in technology. AML is a key area of activity and following the appointment of the new Chair, Anna Bradley, they are working to provide better customer care. He also explained that until now the SRA had not taken any position on issues such as Access to Justice, Rule of Law and Advice Deserts. They were considering looking at, and taking a position on, one or two of these issues each year. There followed several presentations by senior staff at the SRA dealing with Enforcement Strategy and reporting concerns; Customer information – Transparency Rules and clickable logo.; the SQE and Anti-Money Laundering. Comprehensive slides were produced to accompany each presentation which I will forward together with my notes to any member who wishes to see them. Just email me —email@example.com. There followed an interesting tour of the building. SRA have around 600 staff members with the majority based over three floors at the Cube. The next meeting of the County Societies Group will be in the summer and we also plan a Parliamentary Liaison event at Westminster later in the year. I am pleased to announce that DASLS has two new Partners; Moneypenny who look after your telephone calls when you are not available and Dictate Now who offer Dictation Systems and outsourced document preparation. They join our current Partners: Alchemy; PKF Francis Clark; Landmark; Lockton; Unoccupied Direct; WebBoss and Wessex Searches. We are thankful for the support our partners give us and encourage you to use them where you can. Depending when you read this our joint event with the Legal Sustainability Alliance on 5th March will be about to take place or will have passed. Regular readers will know that the Society has formed a small working party to encourage and identify how firms can improve their sustainability. The main Committee have suggested that this forms a Sub-Committee. We will arrange a meeting of the working party after the event on the 5th March with a view to progressing this. Anyone who is interested in this please let me know. Tony Steiner, Executive Director DASLS....
You may know that DASLS is fortunate to be twinned with Bilbao, Erlangen, Gdańsk, Leuven, Rennes and Verona. Such twinning arrangements underpin a sense that we belong to one community of values on the basis that these relationships are based on reciprocity. Each year, we meet to discuss and debate important legal issues of the day, whilst discovering the cultures and languages of our partners. 2020 is DASLS turn to host such an event, which will be rounded off with the Sunday Legal Service at Exeter Cathedral on 7 June 2020 and to which DASLS members are cordially invited! The subject of our conference (on 5 June at County Hall in Exeter) will be around the impact of artificial intelligence (AI) in the sphere of human rights. Rather than understanding AI in terms of a terrifying post-apocalyptic vision of a world controlled by robots, AI features in our everyday lives from Alexa and smart home devices to controversial facial recognition technologies and even Uber! AI is built by lines of code called algorithms. Put simply, an algorithm is a step by step method of solving a problem and is commonly used for data processing and calculation. However, the use of automated data processing techniques in public and private sectors, especially by internet platforms and its impact on the exercise of human rights is somewhat of a hot topic. When it comes to AI, there is a focus on the usage of huge datasets. AI bias means when an algorithm produces results that may be prejudiced due to erroneous assumptions in the machine learning process and the data used to train the algorithm by data scientists. Bias runs deep in humans and it can be unconscious in nature. AI systems are created by individuals who have their own unique experiences and blind spots all of which can lead to fundamentally biased systems. This issue is compounded by the fact that those responsible for AI (including its deployment and training) may not be representative of society. Accordingly, unfair treatment of a group can result from the use of an algorithm to support decision making whether that decision relates to criminal sentencing, loan applications or self-driving cars. The language of AI is undoubtedly complex, but it is drastically changing the way we live. Understanding AI and its implications in the context of its growth is important so that we are all better placed to push companies to develop new technologies both ethically and responsibly. If you would like to receive more information once the June 2020 programme is finalised, please contact Monique Bertoni at DASLS office – firstname.lastname@example.org . Emma Mitcham Chair, International Relations Sub-Committee...
New AML Regulations and the pursuit of the beneficial owner. Introduction The new Money Laundering & Terrorist Finance (Amendment) Regulations 2019 which came into force on 10 January have modified a number of aspects of the 2017 AML Regulations, with which we have been complying for some time. However, many firms’ procedures hark back to the earlier days of the 2007 Regulations and have not been modified or updated much over recent years. This article seeks to set out what the new Regulations in fact require, and the steps we should be taking in relevant cases. The Policy It has been true for some time that the ultimate aim of all the regulatory rules is transparency – it has always been the case that the use of artificial structures such as trusts, companies, bearer shares, foundations and charities – whilst perfectly legal – have to some extent also benefitted from the extra anonymity they offer to the true owner and recipient of the funds and services we provide. If we offer services to these types of entity, the Regulations require us to go some way to identifying the individuals who are actually benefitting from our services, and this entails uncovering the true ownership of the organisation. Whilst this would be difficult in many instances – Cayman Island companies with bearer shares, for example – we must nevertheless attempt to get some assurances from the creators of the companies, accountants or registrars as to the ownership of the shares, and have some way of being notified of any change in ownership. We also need to be aware of the PEP and Sanctions status of these individuals. Further, for UK companies, the PSC Regulations 2016 impose an exactly similar obligation on the companies themselves to identify their beneficial owners and notify Companies House of any shareholder with 25% or more of the shares or exercising control over management of the business. The Regulations The Regulations provide that we must, as part of our CDD procedures Identify the client – this means coming to know who they are, by name and some other characteristic, e.g. address, date of birth, date of incorporation Verify that identity – by means of reliable and independent data and documentation Identify the beneficial owner (if the client is an entity) – though not necessarily verifying that identity Identify and verify the identity of the person actually instructing us (if not already done). What this means for us When acting for a COMPANY (that is not a listed company) the Regulations require us to obtain Details of the company as registered (which must be proven by a copy of the register entries available from Companies House or equivalent registry) – name, number, registered office address, principal place of business the law to which it is subject details of its governing documentation (its memorandum) names of the directors. Names of any beneficial owners, and the identity of any individual owners of legal entities which own the client Names and verification of the persons instructing us on behalf of the company, and their authority to do so. Note that we cannot rely on the information provided by the company under the PSC Regulations but we must undertake our own research in order to fulfil our CDD duties. Further, if as part of that research, we discover that the Companies House data on PSC’s is incorrect, then we are now under a further obligation to notify the Registrar of Companies of this fact. We also need to establish that PEPs and Sanctions checks are also undertaken. If genuinely positive entries are revealed in response we should undertake enhanced CDD steps or cease to act, accordingly. Electronic searches are a permissible avenue to use provided the search provider can offer us the necessary assurances that the person actually claiming an identity is IN FACT that person. Check also whether ...
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