The proposed Apologies Act for Scotland : good intentions with unforeseeable consequences

This article considers Scotland's proposed Apologies Act in the light of experience in other Common Law jurisdictions. A number of Common Law jurisdictions have passed Apologies Acts in the past 25 years, largely motivated by concerns about a 'litigation explosion'. The idea seems to be that providing evidentiary protection to apologies will encourage their use, or at least prevent insurers and lawyers from advising against them. Charlie Irvine considers the plausibility of this hypothesis and suggests that the drafters of the Bill face an unresolvable dilemma: blanket protection for apologies may prevent credible evidence from reaching the courts, while narrowing that protection to exclude admissions of fault may stilt apologies and rob them of credibility

Mediation and social norms : a response to Dame Hazel Genn

This article is a response to one of Dame Hazel Genn's 2009 Hamlyn Lectures in which she criticised mediators for having 'no interest in fairness and justice'. It considers the role of social norms in mediation, reviewing Ellen Waldman's useful taxonomy, before concluding that mediation rhetoric is out of step with much UK practice. It proposes that an ethical approach requires a thorough examination of mediators' values, which should be clearly articulated for the benefit of clients and the credibility of the profession. This is best achieved by the development of reflective practice

DOES MEDIATION DELIVER JUSTICE? THE PERSPECTIVE OF UNREPRESENTED PARTIES

This study examines the justice thinking of unrepresented people who have taken part in mediation. The context is two mediation services, serving Scotland’s two largest courts, from which the twenty four participants were referred to mediation by a judge (known as a sheriff) in the course of a small claim. The study addresses a notable gap in the literature on mediation: the modest attention paid to parties’ perspectives on substantive justice (see Chapter 1.C and 3.C. below). Its aim was to provide a richer understanding of the thinking of mediation participants charged by the justice system with devising an outcome to their disputes, in particular their evaluations of the fairness and justice of that outcome. It finds that those without legal training can nonetheless apply justice principles in resolving their disputes; this can be described as “justice outside the law.” They were able to account for their decisions in terms recognisable to those operating the justice system: the encounter (replicating the day in court), the chance to tell their story, compensation, punishment of bad behaviour, closure and payment. However, their lack of formal legal knowledge can lead to injustice and the study highlights the key role of activist mediators in providing legal information when required. Despite having forged the terms of their settlements, most participants were ambivalent when asked “Did you get justice?” The study notes several reasons. First, they are decision makers who are also decision recipients, meaning the other party, their legal opponent, has a say in the outcome. Secondly, they want to do, and be seen to do, justice. Thirdly, they also want to receive justice (and not injustice), yet often have to compromise and settle for “good enough” (see Chapters 5 and 6, below). And finally they have little interest in applying, still less in creating, legal norms. I conclude that mediation can deliver justice but not law

What do lay people know about justice? An empirical enquiry

When mediation places decision-making power in the hands of lay disputants it raises troubling issues. Can justice be delivered without judicial assistance? What is the effect on the legal system? And how should outcomes thus achieved be regarded? Critics have tended to answer negatively, pointing to a range of harms including individual oppression and the vanishing trial. Such views, focusing too narrowly on conformity to legal norms, overlook ordinary people's capacity for justice reasoning. A recent Scottish pilot study of small-claims mediation parties illustrates the richness and complexity of their thinking around whether, and for how much, to settle. This suggests that mediation settlements, rather than representing second-class justice, may enhance the legitimacy of the legal system. Implications for theories of justice are considered

What usually happens in my mediations

Charlie Irvine's thirty-year career as a mediator has included family, workplace, commercial and complaints against lawyers. He has an academic interest in the field and runs the LLM / MSc Programme in Mediation and Conflict Resolution at University of Strathclyde, Glasgow, Scotland. He is writing up a doctoral study on the justice thinking of unrepresented people in court-referred mediation. In the account below, he describes "what usually happens" when he mediates complaints against legal practitioners under a Scottish statutory scheme, though he remains wary of calling it a model. This exercise has reminded him of the values and principles driving the myriad "moves" mediators make

Pracademia : a personal account of a mediation clinic and its development

This article tells the story of University of Strathclyde Mediation Clinic through the eyes of its founder. Taking its first case in 2012, by the start of 2021 it will be providing a free mediation service in 16 of Scotland’s 39 sheriff courts,1 covering more than half the country's population. Yet it started with no plan, no budget and little theory. Writing in the first person, the author makes the case that mediation clinics, like mediation itself, call for improvisation. While mediators may plan and train, learning frameworks for action and a body of expert knowledge, they must then encounter complex, fallible people and the unpredictable dynamics of conflict. Responding well is arguably more important than reparation. And so it has been with the mediation clinic. The clinic was triggered by student demand and was shaped by its volunteers; it adapted to law clinic gatekeepers and negotiated with university administration; and it reinvented itself through contact with the courts, with hundreds of clients and, most recently, with a pandemic. Each interaction has shaped it. Strathclyde Mediation Clinic is a work in progress, as it must be if it is to fulfil the hope of pracademia: bringing the academy into the world and the world into the academy

Truth. No longer useful?

I started mediating in my early 30s, surely old enough to know the difference between truth and fiction. Yet after a couple of years I began to say, first to myself then to my friends, that the concept of truth was ‘no longer useful’ in my work. What did I mean and how did I get there

Reframing Resolution - Managing Conflict and Resolving Individual Employment Disputes in the Contemporary Workplace

The resolution of individual workplace conflict has assumed an increasingly important place in policy debates over contemporary work and employment. This is in part due to the decline in collective industrial action and the parallel rise in the volume of employment tribunal applications. It reflects a growing concern over the implications of individual employment disputes for those involved but has perhaps been driven by concerns over the cost of litigation and the perceived burden that this places on employers. Against this backdrop, an ESRC-funded seminar series, entitled ‘Reframing Resolution – Managing Conflict and Resolving Individual Employment Disputes in the Contemporary Workplace’, was held between October 2012 and September 2013. This comprised six seminars held at: University of Strathclyde; University of Central Lancashire; Swansea University; Queen’s University Belfast; IRRU, University of Warwick and University of Westminster. The series brought leading academic researchers, practitioners and policy-makers together to explore new empirical and conceptual developments, examine innovative practice and provide insights into key questions of public policy

Mediators and the trait of sensory processing sensitivity : study reveals a significant correlation

Are mediators born or made? Is there such a thing as a 'natural mediator?' Bowling and Hoffman's influential (2003) collection, 'Bringing Peace into the Room,' considers: 'How the personal qualities of the mediator impact the process of conflict resolution.' These questions are troubling for practitioners and educators. Does training matter, or are such qualities, or traits, innate? 'Trait' can be defined as 'A distinguishing quality or characteristic, typically belonging to a person' (Lexico 2020). Are some individuals drawn to conflict resolution work because they already possess these qualities? Or because they seek them? This article contributes to the debate by reporting on a study into the prevalence of a particular trait, sensory processing sensitivity, in a sample of 181 English-speaking mediators. The study found that these mediators were significantly more likely to possess the trait than the average population. The implications for practice and training are discussed

HER2-enriched subtype and novel molecular subgroups drive aromatase inhibitor resistance and an increased risk of relapse in early ER+/HER2+ breast cancer

BACKGROUND: Oestrogen receptor positive/ human epidermal growth factor receptor positive (ER+/HER2+) breast cancers (BCs) are less responsive to endocrine therapy than ER+/HER2- tumours. Mechanisms underpinning the differential behaviour of ER+HER2+ tumours are poorly characterised. Our aim was to identify biomarkers of response to 2 weeks’ presurgical AI treatment in ER+/HER2+ BCs. METHODS: All available ER+/HER2+ BC baseline tumours (n=342) in the POETIC trial were gene expression profiled using BC360™ (NanoString) covering intrinsic subtypes and 46 key biological signatures. Early response to AI was assessed by changes in Ki67 expression and residual Ki67 at 2 weeks (Ki672wk). Time-To-Recurrence (TTR) was estimated using Kaplan-Meier methods and Cox models adjusted for standard clinicopathological variables. New molecular subgroups (MS) were identified using consensus clustering. FINDINGS: HER2-enriched (HER2-E) subtype BCs (44.7% of the total) showed poorer Ki67 response and higher Ki672wk (p<0.0001) than non-HER2-E BCs. High expression of ERBB2 expression, homologous recombination deficiency (HRD) and TP53 mutational score were associated with poor response and immune-related signatures with High Ki672wk. Five new MS that were associated with differential response to AI were identified. HER2-E had significantly poorer TTR compared to Luminal BCs (HR 2.55, 95% CI 1.14–5.69; p=0.0222). The new MS were independent predictors of TTR, adding significant value beyond intrinsic subtypes. INTERPRETATION: Our results show HER2-E as a standardised biomarker associated with poor response to AI and worse outcome in ER+/HER2+. HRD, TP53 mutational score and immune-tumour tolerance are predictive biomarkers for poor response to AI. Lastly, novel MS identify additional non-HER2-E tumours not responding to AI with an increased risk of relapse