Conexus Law – One year on

Time is a funny thing. Sometimes it drags, and sometimes it flies by. I think many of us have experienced a bit of a time warp over the past few months of Zoom calls (“How can it be Friday already?”). And now, Conexus Law is a whole year old, so it seems like an appropriate time to reflect on what has been a very odd, but for me a very exciting and reaffirming, year.

Little did I know that, in addition to the normal challenges of a start-up – just six months in we would be confronted by a global pandemic. Honestly, that had not been on my list of things to worry about.

I decided to set up Conexus Law with a belief that we could create a law firm fit for the 21st century, and a determination to do just that.

I have spent most of my career at two global law firms and had made partner at an early age. Over time I came to realise that the world had moved on, the aspirations of my team were not what they had been, the demands of our clients had changed, but the traditional law firms I was working in were not innovating quickly enough to respond. I set myself four priorities for Conexus Law.

Team. Of course, my first priority was people – law firms are nothing without a premier league team. I’ve seen an exodus of people from the profession – talented lawyers who had left because of the pressures of work and the difficulties of managing a personal life alongside their careers. So, even before WFH recently became the norm, we had created a distributed law firm. Our team works from home, our office or a client’s office – whatever works best to get the job done.

We also offer flexible career paths. If they wish to, our lawyers can start out as consultants, then become employees or partners, and at any point they can take a side-step to being a consultant again, if their life demands require them to. By providing this flexibility we can tackle the lack of diversity in our profession which is critical in enabling us to see our clients’ issues from all perspectives. I’m proud to say we have the most diverse team of people I have ever worked with. Throughout the pandemic lockdown, whilst other law firms are announcing redundancy rounds, we have grown from 2 to 12 – and we are actively recruiting.

Clients. We’re delighted that our clients have continued to put their faith in us to deliver. We’ve a fantastic group of clients who are at the forefront of their sectors, making huge investment and constantly innovating. Helping them to overcome challenges truly makes our jobs worthwhile.

As a result of Covid-19, we found many of the projects our lawyers had previously worked on immediately landed back on our desks – force majeure, supply chain issues, lockdowns, contract renegotiations. The immediate aftermath was a very busy time for us, which to be honest we were not quite prepared for. I’m glad to say that most of the issues that could have become very tricky seem to have been resolved in a cooperative, non-adversarial way. August and September were, in all honesty, a bit slow whilst our clients took a well needed break, regrouped, and worked out what to do with their future investment plans. I know others felt the same challenge and for us, like them, everything is back to full speed again this month. In addition to Covid-19 related work, we’re busy on massive new projects in India, Japan, across Europe and in the UK.

We know clients hate hourly rates. But here’s the secret – lawyers hate them too. They are a blunt instrument and rarely reflect the value of work delivered. So, we are working to create a firm where the focus of billing and performance management is upon output (value delivered) rather than input (hours worked). We’re in active discussions with a number of clients now on how we can deliver legal services in that way. That excites me.

Expertise. I also wanted Conexus Law to be really focussed as traditional law firms have a “fear of missing out” and so they try to be all things to all people. Conexus Law takes a confident stand. We focus on four sectors – Built Environment, Technology Infrastructure, Digital Business and Emerging Technology. We are passionate and inquisitive about those sectors. That means we can deliver creative legal advice informed by a real contextual understanding of the markets our clients operate in.

Innovation. Being a young law firm means we are not constrained by past investments in legacy technology. We’ve been very lucky to find partners like Hyperscale and Inspire-365 who have expertly guided us in surveying the whole market for best in breed technology solutions. As a result, we have moved away from proprietary products, and have implemented systems that will give us rich data and insights, and that will integrate across the whole of our digital environment.

Our first year has been more successful then I hoped for, on every metric. We’ve learnt huge amounts, been extremely resilient to forced change, and grown despite economic uncertainty. I want to thank our team and everyone who has helped us to build something really special – we’re looking forward to developing long term relationships with you all.

Lawyer warns construction companies of the challenges of ‘virtual mediation’ as a result of Covid-19

Organisations that are looking to use mediation as a way to resolve a dispute without the need for costly litigation need to be aware of the impact that the Covid-19 pandemic will have on the process in the coming months, and the potential pitfalls and challenges.

This is according to Ian Timlin, a specialist dispute resolution and commercial litigation lawyer at Conexus Law, who cautions that the new process may not be as effective and is also less secure unless certain measures are put in place.

Ian explains: “From a practical point of view it has been relatively straightforward to bring mediation online with Zoom for example being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session. The mediator can then speak to each party separately or with the parties together, virtually switching online from room to room.

“However, this does mean that things are not necessarily as secure as in a physical situation. As a result, we are advising that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules that are to be adhered to. It should cover areas such as not recording the sessions or sharing of the mediation meeting ID other than to participants involved to ensure no one ‘sits in’ unannounced.

“Also each party should agree that if for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, they can see and/ or hear a private conversation between the mediator and/ or any other party, they must terminate the session at once and call or text the mediator.”

However, Ian goes on to say that the biggest challenge remains the fact that it is much more difficult to establish a genuine rapport across a screen with the mediator and other parties and this is key in mediation to gain a parties’ trust and confidence.

“Before people are willing to settle, they must feel that their interests are truly understood, and only then can a mediator reframe problems and float creative solutions. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room and therefore it is vital that participants show their faces and do not hide behind their name on a black screen or stock photo of themselves. That way each party and the mediator can see how they are reacting to the points being made,” he explains.

Ian also points out that whilst online mediation is new to many organisations, Ebay is a big user and it is estimated that an incredible 50+ million disagreements amongst traders on eBay are resolved every year using online dispute resolution.

“There is no doubt that virtual mediation is here to stay and is certainly appropriate for low value disputes. However, where considerable sums are in dispute or complex issues arise, serious consideration should be given to the traditional form of mediation even in the current circumstances,” concludes Ian.

For more information, Ian has created a guidance sheet, Mediations in the time of Covid, alongside another fact sheet, Renegotiation – An art not a science.

Law firm warns of Post Brexit GDPR impact

Conexus Law, the specialist advisory firm that provides legal and commercial advice to clients who work in sectors where the built environment, technology, engineering and people converge, is urging companies to prepare for the strong possibility that the EU will fail to agree that the UK has an “adequate data protection regime” after the transition period at the end of the year. This will mean that businesses will face barriers transferring personal data to and from the UK to EU countries under GDPR. The warning comes on the back of the ruling by the European Court of Justice at the beginning of July that reversed the prior adequacy decision of the EU for the USA – rendering its Privacy Shield ineffective.

Ed Cooke, Founder at Conexus Law said: “The UK’s use of mass surveillance techniques, our Investigatory Powers Act, and our membership of the Five Eyes intelligence sharing community has raised particular concerns with the EU – especially in relation to the sharing of data with the US, and even more so given the recent Schrems II decision on the Privacy Shield scheme. What is clear is that once a decision has been made then companies will need to move quickly to ensure they are not severely impacted.”

Failure to reach an agreement would mean that companies will need to look at alternatives such as Standard Contractual Clauses and binding corporate rules. Ed reiterates that merely relying on consent is not really an option for most businesses.

“Each of these options has its challenges with consent generally viewed to be unworkable as it can be revoked at any time. Standard Contractual Clauses were upheld in the ECJ in its judgment on Privacy Shield, but the judges did cast some doubt on whether or not these offer suitable protection in all cases without businesses adopting further practical measures such as encryption, to ensure the protection of personal data,” explains Ed.

Conexus Law is advising companies to start preparing now. Companies should already have a full audit of what personal data they collect and where it is stored and transferred to, including back-ups that may be held by cloud-based providers with datacentres all over the world. This audit needs to include all suppliers and partners that data is shared with. The next stage is to look at standard contractual clauses and decide whether further measures are required based on the specific data being transferred. If not, consideration should be given additional methods such as encryption.

“It seems that an adequacy ruling under GDPR is being used as a BREXIT bargaining chip in relation to other unrelated diplomatic negotiations taking place. Unfortunately, businesses may end up bearing the brunt of this and I would highly recommend that they start to prepare now,” concludes Ed.

Fact Sheet: Mediations in the time of Covid-19

In our factsheet Renegotiation – An art not a science, we touched upon resolving disputes using the process of mediation.

Mediation is:

  • Voluntary, private and non-binding negotiation until the parties distil any negotiation/ settlement to a new written settlement agreement.
  • It is most often the appointment of a qualified professional third party mediator (from a professional mediation body such as CEDR or Independent Mediators in the UK) who shuttles between the parties, undertaking confidential discussions with the parties, with a view to brokering a negotiation/ settlement between them.

In the past, mediation has usually been undertaken across, at least, three rooms at a neutral venue with the mediator shuttling between the opposing parties’ rooms having confidential decisions with each party to try to narrow the dispute and gap between them, and ultimately try to get them to reach a settlement.

At the start of such a mediation, there was usually a plenary session where the mediator sits at one end of the table and the parties and their lawyers speak to each other across it.

With Covid-19, mediation has now moved online and they are taking place by various platforms using live screen video. In particular, Zoom is being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session.

So how is it operating virtually? The mediator places each party and its lawyers into its own virtual room, even if representatives from party are at different locations. The mediator can then speak to each party separately or with the parties together. Instead of actual shuttle diplomacy between actual rooms, the mediator does the same virtually by switching online from room to room.

But what are the matters and potential pitfalls that need to considered for a virtual mediation:

Check that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules to be adhered to. It should contain at least the following:

  • The parties should agree that no recording of the mediation takes place (it’s a confidential process), no photo images are taken and that there is no sharing of the mediation meeting ID other than to participants at it.
  • If for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, a participant finds itself able to see and/or hear a private conversation between the mediator and/or any other party, the participant should terminate the online mediation session at once and call or text the mediator on the number provided by it.
  • Steps to be taken if technology fails to operate properly or the mediation session does not start on time or is interrupted.

In the case of the cross border mediations, pre-mediation checks should be undertaken to ensure that no national firewalls prevent parties in one jurisdiction from using Zoom or the technology platform to be used for the mediation.

A pre-mediation call from the mediator to all participants from a party and the testing of the technology platform to be used by all representatives of party for the mediation is paramount. A good and secure internet connection and both the parties and the mediator understanding the technology/platform are very important to a successful mediation.

As to the virtual mediation itself, the following points should be borne in mind:

  • A headset with microphone or earphones with microphone is very helpful.
  • Mute microphones and don’t talk over people.
  • A professional background and decent lighting will assist the process. Representatives of a party should show their faces and not hid behind their name on a black screen or stock photo of themselves so that each party and the mediator can see how they are reacting to points being made.
  • An interruption free day is very important for participants. That is more easily achieved in an in-person mediation rather than representatives from a party being in different locations and often at their homes. The use of phones and checking emails on the computer that a party is using to participate in the virtual mediation should try to be avoided.
  • Across a screen, it is going to be more difficult to establish rapport. To gain a parties’ trust and confidence, rapport must be genuine. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions. Relationship building is more difficult online. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room.

Virtual mediation is still relatively new for all clients, litigators and mediators. In our experience of having undertaken virtual or live screen mediations, it’s the best bet in circumstances where parties genuinely cannot all be present at the same premises (even on a socially distanced basis), but it is simply not as effective as a live mediation with all the parties at the same venue, cooped up in their respect rooms for most of a day and with the mediator being able to shuttle between them in the flesh.

Perhaps one of the most well recognised users of online dispute resolution is Ebay. It is estimated that an incredible +50 million disagreements amongst traders on eBay, are resolved every year using online dispute resolution.

Virtual mediation is here to stay and is no doubt appropriate for low value disputes but where considerable sums are in dispute, serious consideration should be given to the traditional form of mediation even in the current circumstances.

For further advice on mediating, please contact Ian Timlin via his contact details below. Ian has been a CEDR accredited mediator since 2000.

Ian Timlin
Main: +44 (0)20 7390 0280
Mobile: +44 (0)77 6742 7332
ian@conexuslaw.com

This factsheet is for general information purposes only and does not constitute legal advice. The law is open to, and may have changed since this was written, and it cannot be relied upon as advice in respect of your particular situation. 05/08/2020

Fact Sheet: Employment matters to consider as we prepare to emerge from lockdown

The government has set out plans to take the UK out of lockdown and allow the economy to restart safely while continuing to minimise the spread of the coronavirus. It has issued and continues to issue guidance and mandate actions that businesses and individuals must take to support this effort.

We have no reason to believe that restrictions on how businesses operate will be lifted in the near future, and employers should plan now to meet their obligations in this regard.

As the government winds down the coronavirus job retention scheme, it is anticipated that a significant proportion of employers will face difficult economic choices regarding their workforce in the absence of government assistance. Employers should urgently consider what working arrangements, including working hours, shift patterns and rates of pay they will provide to their staff when flexible furlough is introduced on July 1st, and as government assistance under the job retention scheme is withdrawn.

This note provides some valuable, practical steps for businesses in relation to their employees and working practices as we cautiously resume ‘normal’ working patterns.

Digitalisation World talks to Conexus Law – Adjusting to life after lockdown

Digitalisation World talks to Marilyn Heward-Mills, an employment lawyer at Conexus Law – covering workplace advice for the data centre sector, as both employers and employees adjust to life after lockdown.

Fact Sheet: The Government Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme, which is designed to support employers whose operations have been severely affected by coronavirus, will end on 31 October 2020.

Since 10 June 2020, no new employees may be placed on furlough other than parents returning from statutory maternity or paternity leave.

Until 31 July, employers can claim 80% of furloughed employees’ usual monthly wage costs, up to a cap of £2,500 a month, in addition to the associated Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions.

From 1 August until the scheme ends, employers will begin to resume the burden of employee costs as set out below. HMRC launched an online portal on 20 April, where employers can make one claim per pay period.

Fact Sheet: Claiming interest and other costs

If you are owed money and are making a claim for it in a letter or email, do not forget to make a claim for interest and other costs that you may be entitled to…

Black Lives Matter: How employers can engage with the conversation, AMBA

Racism is an issue that lives within many organisations and employers should consider committing to making real and substantial change now, starting by engaging in the conversation with all employees, says legal expert Marilyn Heward-Mills

The shocking killing of George Floyd at the hands of law enforcement officers in the US, which has resulted in mass protests across the US and in the UK, has once again highlighted the disturbing reality of deep-rooted race discrimination within our society.

Although it might be tempting to confidently profess that racism does not exist within your workforce or business, that might not be the best conclusion to reach without further examination.

In the UK, the Equality Act 2010 prohibits direct and indirect discrimination and harassment in the workplace in respect of race (which includes colour, nationality, ethnic and national origin).

Nevertheless, racism is an issue that lives within many organisations, and employers should consider committing to making real and substantial change now, starting by engaging in the conversation with all employees, regardless of race or background.

Research shows that people from ethnic minority groups are often at a disadvantage in the labour market and are more likely to be unemployed and over-represented in poorly paid and unstable jobs. There is also a significant under-representation of ethnic diversity at the top of UK boards, as shown by the Government’s recent Parker Review.

Particularly, at this time, doing nothing might be damaging to your workforce morale and your reputation, and might not be the responsible business response.

Set out below are some practical steps that you, as a business leader, might consider:

  • Acknowledge that the death of George Floyd and the ensuing mass protests has an impact on your BAME (black, Asian and minority ethnic) employees.
  • Express your sadness and sympathy about the situation.
  • Clarify and communicate your organisation’s stance and values on the subject of racism.
  • Declare a commitment to begin or continue the process of open dialogue with your staff about how racism impacts them and your business.
  • Consider ways to engage meaningfully in the conversation around racism by creating a safe environment in which individuals can share their personal experiences and learn from each other.
  • Commit to listen to the concerns and needs of all of your workforce.
  • Commit to educate yourselves and your staff about the realities faced by BAME individuals in the work and social space, including those that you employ or transact with.
  • Ensure diversity and inclusion remain top of your agenda and commit to action that will ensure you achieve your goals.
  • Determine what other steps you must take to ensure racism is stamped out in your organisation and how you will build a diverse, supportive culture that is respectful and fair for all.
  • Commit to leadership and action and set targets for required change.

Marilyn Heward-Mills is an Employment Solicitor at Conexus Law.

Source: www.associationofmbas.com/black-lives-matter-how-employers-can-engage-with-the-conversation

Fact Sheet: Publishing a modern slavery statement during the pandemic

Under the Modern Slavery Act 2015, commercial organisations that meet the requirements below are required to publish an annual modern slavery statement setting out the steps they have taken to identify and address their modern slavery risks:

  • ‘body corporates’ or partnerships, wherever incorporated or formed
  • that carry on a business, or part of a business, in the UK
  • and supply goods or services
  • with an annual turnover of £36 million or more.