Mediation for the most vulnerable
The tragic case of Alfie Evans has been much covered in the press over the last few weeks as his parents battled to be allowed to take him for treatment abroad and then latterly just to take him home to die with his family as they wished.
Despite numerous appeals to the European Court and the ECHR and appearances before the Court of Appeal and the Supreme Court never once did I hear anyone mention that court proceedings were not necessarily the best way forward, leading as they did to abuse of the hardworking dedicated staff at Alder Hey Children's Hospital.
Could the Court have directed mediation? Should it have been a consideration? It is plausible that mediation could have assisted, as it has in the similarly difficult case of Kyle Carpenter, and 8 year old who sued Sligo General University Hospital for 5 million Euros.
Before Kyle was born in May 2009 his mother had been to Sligo General with pain, she was sent home being assured everything was fine and she was definitely not in labour.
Two days later Kyle’s mother could no longer feel movement and attended Sligo again, when eventually a C- section was carried out on 3 May 2009.
The delay in carrying out a CTG and delaying the c-section was alleged to be negligent, and whilst the hospital admitted breach of duty for failing to deliver Kyle earlier nothing further was admitted.
Despite no further admissions being made settlement was achieved via mediation and we can only endorse the comments of Roger Murray, Kyle’s solicitor who said that mediation was the only way forward in cases like this.
"This has to be a signal of how things should be especially in cases involving emotional situations or complex needs involving children…Some 26 expert witnesses were lined up to give evidence before the court for either side, with the case set to run for several weeks from the beginning of May. Through mediation, however, the action was settled.
"This is exactly the type of case that the mediation process was designed for. In achieving this outcome, the family were spared the ordeal and stress of a protracted court battle, and there was substantial cost savings for the State”.
Kyle’s parents were in agreement that mediation provided a “win win” scenario for everyone involved without the delay and stress of lengthy court proceedings.
Turning to developments on the other side of the world in mediation China is attempting to improve its mediation teams and is seeking professional training for their mediators (Northwest Mediation is happy to assist should Beijing call).
The new guidelines issued jointly by the Commission for Political and Legal Affairs of the Communist Party of China Central Committee, the Supreme People's Court, the Ministry of Justice require all legal departments across the country to have training in place for mediators in areas including law, ethics and social development.
What China refers to as “a people’s mediator” must be “fair, honest, self-disciplined and warm hearted” all attributes that are commendable in a mediator but we would suggest that the description fails to include the need to be tough skinned and, where necessary, challenging.
The hope is for Chinese professionals from all walks of life to begin training as mediators, and, in what I hope is an unnecessary qualification says that mediators must not request or accept bribes or breach confidentiality with the penalties being of the utmost severity.
China already has 766,000 mediation committees and nearly 9 million cases a year go to mediation for settlement. That is a little higher than the 50-60 cases Northwest Mediation handles each year but even the rate here is increasing.
At quite the other end of the scale, but back with children in mediation, in North Jakarta Jonathan Dunan has requested mediation in a case (which I’m avoiding calling appalling) where he kicked a boy on a swing seemingly in retribution for the boy accidentally colliding with the Dunan’s daughter.
The video of the incident at the playground of a mall in North Jakarta’s Kelapa Gading, shows Dunan’s daughter being accidentally knocked by the boy as she walks behind his swing before Dunan goes over to her and on his way either reaches out with his foot to stop the swing or kicks out - depending on your point of view.
Dunan said “I was panicked after seeing my daughter fall and cry… I spontaneously approached and intended to stop the swing with my foot, so that it wouldn’t hit other people, including myself,”
Police continue to investigate the incident and the mall has already attempted mediation on behalf of both parties, Dunan is now seeking assistance and mediation from the National Commission for Child Protection.
Whether it’s a life, death, injury, care or contact mediation involving children is always fraught with emotion on every side. It is key to the mediator’s role to remain dispassionate whilst caring and listening to all sides’ view-points. Sometimes that means letting one side unburden themselves and outpour their grief and anguish so that they can move forwards, sometimes it means challenging the view of a parent or carer.
And it’s not just child cases where emotions run high, where a client’s business, job or property is at stake parties to a mediation always care and must be listened to and have their opinions valued, challenged if necessary but always communicated to the other party to steer them to a mutually acceptable agreement.
Mediation is cheaper, quicker and less stressful than running any case to court, it can help with any dispute whether it's an issue involving children, an employment issue or the sale at an under value of a property, a fight with a neighbour, commercial disputes or inheritance arguments contact Northwest Mediation on 07931318347 or via email at firstname.lastname@example.org
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