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  • Writer's pictureEd Johnson

10 Duel commandments, for mediation

With the continued backlog of cases mediation is now more than ever the best choice to find a resolution for your dispute. Get your dispute resolved now so you can really concentrate on what’s important and what deserves your time and energy.


Northwest Mediation continues to use Zoom, Skype and FaceTime as well as the phone and emails to resolve disputes should we add we also do live in person mediation too! So please do not feel that you cannot contact us if you would like to mediate but wish to do so remotely.


I had the very great pleasure of watching Hamilton at the Manchester Palace Theatre this week, a splendid cast, emotional performances and excellent sets, it was our daughters reward for getting through her GCSEs, her brother received an engraved sword (believe it or not the cost of the two gifts were on a par).


Within the musical there are 10 duel commandments and I therefore present for you the ten mediation commandments based upon Lin Manuel Miranda’s work.


1. Agree to the mediation – it’s voluntary folks so agreement is still needed before we can move on to

2. Assign a mediator

3. Meet your mediator OK this is stretching the rules from Duel to Mediation a bit but at some stage and I guess in family its your MIAM

4. Organise your weapons, or documents would be preferred thank you

5. Set a time, yep we’re good for that one agree, preferably not at dawn though

6. Leave a message for your loved ones…ok no we very much do not want other parties involved in mediation do perhaps get your loved ones ready for you to come back emotionally drained and ready to support you

7. Pray – I won’t stop you but have faith in the mediator and the process

8. Try one last time (oo two Hamilton references in one) to reach an agreement directly, sure if you think it’ll work but more often than not by this stage you will want to see the mediation through to the end

9. Attend the mediation

10. Commence - let’s not say “fire” but yes move along and keep focused (with or without your glasses, but please don’t fiddle with your trigger in session).


Don’t throw away your shot by spending thousands on lawyers, you won’t be left helpless by attending a mediation, sometimes you have to accept that the agreement you reach would be enough and whilst history might not necessarily have its eyes on you your family will have. You can take a break and though at this time of year you may have to wait for it your first appointment will soon come around and you’ll be back to a new life before you know it. I met one of the children of Calderbank v Calderbank, it’s a case which still has an impact years on in legal terms but as they explained to me no where near the lasting impact the case had on the family.


Someone else talking about rules in mediation this week is Rebekah Ratliff. She talks about her experience studying and understanding the underlying motivations for people who find themselves in conflict and ultimately in a mediation.


She mentions the dangers mediators risk by unconsciously imposing their will or their view on the parties, it’s all too easy to spot the “easy” solution but guiding the parties to that position is part of the job, ultimately it must be their decision to reach an agreement even if (as is sometimes the case) it’s not a settlement you would have thought either advisable or indeed possible at the start of the process.


Yes we give comment on what may or may not be possible, yes we’ll suggest ways around problems and deadlocks but at the end of the day we cannot make a judgment for the parties. We will sometimes use an early neutral evaluator (much akin to an arbitrator) who can assist the parties with the possible outcomes and then let them discuss with their legal teams what options to try for and which avenues to abandon.


I like Rebekah’s point that getting to know the themes by which clients communicate helps you understand their needs and I would add it assists in setting the pace of the mediation. Some clients want a methodical almost mathematical approach to steps taken and decisions others are more emotional thinkers and spotting the difference and working with both is one of the skills we need.


Mark E Goodman has more words on how to approach a mediation goodness me it’s a week of numbers and guides. Mark doesn’t fixate on Hamilton and instead goes for the very sensible 5 point approach.


1. View the mediation as puzzle to be solved, be inquisitive, be curious be determined

2. Be patient, goes hand in hand with number 1, some folks take longer to open up

3. Accept you will be playing multiple roles (including metaphorical punch bag at times) you’ll need to be helpful and difficult, cooperative and objectionable it’s a balancing act

4. Use common sense, the least common of all the senses, if something sounds wrong or doesn’t fit your understanding it’s because you need to dig more

5. Don’t give up – tenacity in the face of difficult clients is a necessity some (I won’t say many) clients make you want to chuck the towel in early on but they’re normally the ones who need your help the most.


Do you need more lists this week or would you prefer a news article?


And this news article is very interesting, as it shows that in the US federal mediators have sufficient power to stop parties breaking out of the mediation and going to strike.


I’m not going to suggest that kind of power is a good thing, mediation has to remain at its heart voluntary but if you can encourage parties to stay with the process rather than the costly alternatives (for all involved) then much better to keep them at the table.


I’m not sure I understand the mechanics behind the mediator’s power in this matter as it seems they can unilaterally insist that negotiations continue. Perhaps the fact they refer to negotiations as opposed to mediation is a clue that this is not a mediator in the sense that we understand the role but more of a government negotiator. Seems a bit unlikely that any union would take notice of even ACAS saying they had to stay and continue negotiating.


If you want to see what poor participation in mediation looks like it’s throwing a strop and walking away because leading up to talks one party says something you’re not wholly happy with. I’m thinking of our current (at time of writing) pm and his toys out the pram approach to the Parthenon Marbles, there’s an easy way to sort the issue and an easy way to drag things out he’s opted for neither and chosen the third option of not even talking. Burying your head in the sand is never the right approach, but he’s got bigger concerns I suppose.


The three pillars of mediation remain it’s voluntary (at the moment), it’s confidential, the mediator is independent, by using those pillars to support your work the parties keep control, save costs, save time and energy and reduce stress. Finally this one is mediation, mediator jointly appointed, areas of discussion agreed and intention to be bound by the outcome.


In person or via electronic media as we’ve said before choose to mediate early and resolve your issues effectively, timeously, and with less stress and costs than going to your solicitor so you can get out choose a different path, not quite the road less travelled but perhaps the path less adversarial. You have an interest in the outcome the sooner you get round the mediation table the quicker you can move forward and avoid the grilling a cross examination in court would put you through.


By having a deep and meaningful discussions with parties the mediator elicits what the true “red-lines” are and where there is the potential for compromise, it is with this structured period of reflection that the parties are then able to reach an accord.


The flexible nature of mediation and the possible outcomes make it an ideal way to resolve disputes in an ever-changing world and the open nature of discussions in mediation whilst remaining confidential allows all sides to engage fully in the process and understand the needs of all involved allowing parties to reach a conclusion which both sides can live with and move on.


There are so many situations which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public will go to avoid referral.


Whether you need a mediator to help out with a construction matter in the Northwest, or council’s plans in Cheshire, a civil mediator in London, a commercial mediator in Manchester, a dispute resolution for your family in Liverpool, a neighbourhood mediation in Stockport, then our mediators at Northwest Mediation can help.


Mediation is cheaper, quicker and less stressful than running any case to court, it can help with any dispute whether it's an employment issue or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes, civil mediation or inheritance, wills and probate arguments contact me at Northwest Mediation on 0161 667 4418 or via email at ed.johnson@northwestmediation.co.uk

neighbour mediation; commercial dispute resolution; civil mediation; commercial dispute; corporate dispute; commercial mediator; family mediation; inheritance wills probate mediation; property mediator; civil mediator; civil litigation; fast track mediation; injury mediation


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