Mixed-Practice Mediations Bridging the gap by combining lawyers and accountants

ICAEW Introduction Dispute resolution at the ICAEW – Fee arbitration service – President’s appointment scheme – Conciliation – Mediation – Resolving Commercial Disputes

ICAEW History of dispute resolution at ICAEW (1) 16 years ago -conciliation introduced as an alternative to investigation to address complaints Recognised that members should be given the chance to ‘put things right’ where they have not acted as expected of them under the Institute’s bye-laws 85% success rate Practical resolution for the client No disciplinary record for the member

ICAEW History of dispute resolution at ICAEW (2) Conciliation is limited – only for members – only where disciplinary liability identified – legal action was the only alternative Paul Turner recognised that mediation was the answer to help members resolve client/firm disputes Mediation Service was created with conciliators and then other staff being trained as mediators by the ADR Group

ICAEW Case study 1 Two-person partnership Business and personal relationship Each had prepared cessation accounts Neither agreed the other’s figures and detailed technical argument was presented Spreadsheets and projection used to expose key issues Conclusion – two mediators can do more analysis

ICAEW Case study 2 Client involved in litigation engaged member to produce an expert’s report Argued report was of such poor quality that it was worthless and impeded the clients ability to get legal aid Technical arguments of the member were tested and found wanting by the accountant on the mediation team Conclusion – two mediators provide wider skill-set

ICAEW Case study partnership going into dissolution Three mediators sifted them into four factions Saved firm, created a new one, provided for a fixed-term consultancy and an early retirement Conclusion – the number of mediators varies depending on the needs of the mediation

ICAEW Advantages of co-mediation The mediation team can represent the parties’ diverse characteristics; ie, male/female, older/younger There is a better chance of creating a sense of trust with at least one of the two mediators The parties have the advantages of the combined skills of two mediators; the skills normally enhancing and complementing each other Co-mediators can model co-operative problem-solving either as a check on the mediators’ biases or, indeed, shortcomings

ICAEW Advantages for the mediators Eases the load and tension on the mediator Tasks can be comfortably divided A team is less likely to be ‘co-opted’ by a party to the dispute Mediators can benefit from the opportunity to explore options before discussing proposals with the parties Two caucuses can take place simultaneously Can accelerate the pace of the mediation More likely to achieve the benefits being sought

ICAEW Co-mediation dangers Mediators seen as experts Mediators asked to judge arguments Cost

ICAEW Mediation in the financial world USA – Financial Industry Regulation Authority Australia – Australian Securities and Investments Commission Hong Kong – Investment Products Disputes Mediation Scheme – Commercial Mediation Scheme Pilot UK – Finance & Leasing Association – Resolving Commercial Disputes

ICAEW Resolving Commercial Disputes ICAEW and ADRg recognised – the benefits of co-mediation – the need for mediators to match the challenge of the FTSE 100 ICAEW and ADRg interviewed a number of lawyers and accountants and created a panel of 20 leading figureheads in law and accountancy The service was launched this summer

ICAEW Resolving Commercial Disputes panel (1)

ICAEW Resolving Commercial Disputes panel (2)

ICAEW An effective co-mediation team can (1) enhance the expertise, insights and listening capacity of the parties who may possess diverse backgrounds, professions and ethnicities increase the patience and perseverance of the mediation team by sharing the burden create balance in the mediation team due to the diversity of mediators provide a model for the parties of effective communication, cooperation and interaction

ICAEW An effective co-mediation team can (2) multiply the linkages that different parties can develop with the mediators, increasing the stamina and tolerance of the parties who are given a second voice and perspective allowing one mediator to take a risk while having the other available to come to the rescue, and make the mediation more effective by the division of tasks between the mediators.

The service is the first of its kind to combine the expertise of both lawyers and accountants. I firmly believe that by bringing together these two highly regarded professions we are providing a unique way of resolving commercial disputes. The service offers cost-effective and quicker solutions to avoid expensive litigation. ‘ ‘ Michael Izza, Chief Executive of the ICAEW

To fully understand the complex commercial issues often at stake and to find a solution requires not just knowledge and experience but also innovation. The panel we have brought together has all these skills and companies who use it will have access to some of the best legal and financial acumen -as well as boardroom experience -available. ‘ ‘ Mike Lind, Managing Director of ADRg