Why do you have to go and make things so complicated?
This week in preparation for a talk to the Manchester Chartered Legal Executives about the role of mediation, and in particular the Manchester County Court Civil Mediation Pilot Scheme, I was forced to reconsider last year’s Court of Appeal decision in Gore v Naheed.
I say forced as it’s been used to say that the rules laid down in Halsey v Milton Keynes NHS Trust and PGF II v OMFS don’t necessarily mean there will be a costs penalty for a party who refuses to engage in mediation.
The reason heavily relied on in Gore was that the solicitor for the successful party who refused mediation did so on the grounds that the issues were too complex for mediation.
I could not disagree more strongly with both the suggestion and the decision of the Court of Appeal.
Mediators have been involved in the most complex areas of law and relationships, everything from gang warfare to international warfare, as I’ve blogged about on numerous occasions. For a solicitor to suggest that was a matter of an argument over the rights of way in a back courtyard was “too complex for mediation” is simply wrong.
I note that the issue was considered not to be too complex to feature as the first scenario at last year’s National Mediation Competition, which I helped judge, and in the scenario heavily based on Gore all the students I saw were able to address the issues and help the parties come up with realistic ways forward.
Although not a great case for encouraging mediation what Gore does remind all litigants is that attempts at mediation will more likely than not be considered on the question of costs even if ultimately the court decides not to make any adjustment to costs once their actions have been considered.
In news this week from Russia we have the government bringing in new procedures for mediation via the Supreme Court. Whilst Russia may not be the greatest advocate for freedom and forward thinking but at least in terms of mediation the proposals to employ a court mediator and refer cases (except those involving coercion) to a mediator is welcome news.
Meanwhile in Seoul the South Korean President, Moon Jae-in, has seen his popularity and approval ratings jump from 63% to 75% following his mediation efforts between the US and North Korea. (No doubt there will be some who say this was not a very complex matter so suitable to mediation!)
And whilst over here the case of Alfie Dingley being allowed to use cannabis oil to treat his rare condition which causes seizures on a daily basis had to go to through the courts, over in Buffalo Edward and Audrey Cramer are attending mediation with the state following their own brush with the law thanks to one of their plants being mistaken for the weed.
When they were arrested and held for several hours in the back of a police car the fallout was a threat of cancellation from their insurance company, despite the police releasing them without charge as the plants were merely similar in appearance to cannabis.
Proceedings against the insurer, the police and the state are now heading for mediation, so that the parties can consider in a calm atmosphere the best way to resolve the dispute.
And finally I noted a depiction of mediation in popular culture this week, in which the difficulty of the first mediation face to face meeting between disputing parties was shown with more than a little dark humour.
In Fox’s Lucifer season 3 episode 17 mediation was depicted between two friends who had fallen out over a man had, well an angel. Dr Linda Martin (Rachel Harris) and the demon Maze (Lesley-Ann Brandt) attended an initial mediation by lawyer mediator Charlotte Richards (Tricia Helfer, known for her role in the reboot of Battlestar Galactica and for sharing my birthday).
The mediation meeting was less than successful but, as with many opening meetings, laid bare the feelings of the participants allowing for frank exchange of opinions and positions.
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 or inheritance arguments contact Northwest Mediation on 07931318347 or via email at firstname.lastname@example.org
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