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  • Ed

Mediation not litigation

Updated: Jun 23, 2021

I was all ready to get on my high horse and start shouting when I read the title of this article, however the second paragraph took the wind out of the sails of the SS Righteous Indignation as Conna A Weiner says “I posit that requiring business parties on the brink of litigation to hit a controlled mediation pause button with the help of a business-oriented mediator and the right process and participants almost always makes sense”. Thank goodness for that I can now read this article with wholehearted agreement.

Businesses should not only be automatically inserting mediation clauses into agreements but even where they have not done so should head to mediation before they issue proceedings.

As Conna sets out the benefits of mediation before issue include preventing the hardening of attitudes, once it’s down as a pleading the parties lose an element of flexibility to consider the issues in the round, that shouldn’t stop them coming to mediation at any stage of he process but it is still best done before the outset of litigation, more time and more costs are saved the earlier the process starts.

I’ve seen mediation used in civil cases from before the issue of proceedings to just before trial all of which have seen positive outcomes and avoided unnecessary cost and time being spent by the parties, witnesses and the overstretched courts.

In California 6 dioceses have agreed to form a compensation programme outside of the courts. I’m not sure I read this as true mediation as the suggestion is that Kenneth Feinberg and Camille Biros, the mediators, will review claims and determine who gets compensated and what they receive. That’s arbitration in my book and not the work of a mediator.

Bishop Gerald Barnes of the Diocese of San Bernardino , from one of the diocese involved said “In the coming weeks, victim-survivors will be able to come forward and share their stories confidentially with an independent, third-party mediator and begin a process that can lead to their compensation… I know financial compensation can’t erase the trauma and lasting impacts of abuse. At the same time, several of my brother bishops of California and I have come to believe, after prayerful reflection, that this program can offer a measure of healing to victims.”

The Survivors Network of those Abused by Priests however stated “We believe that the best way to expose wrongdoing and enforce accountability is for crimes to be made public and for punishment and compensation to be meted out by courts, not the institutions that allowed the wrongdoing to happen in the first place…Survivors deserve a chance to have their day in court and shed light on their abuse, and that can only happen when statutes of limitations are reformed, civil windows are opened, and bishops are held accountable in courts of law…If California’s bishops are serious about creating a compensation program that is to the best benefit of survivors, they should seek to meet with survivors who have had experience with litigation and compensation to help refine and improve this compensation program”

My view, for what it's worth, is that if the parties want mediation then that is entirely their prerogative, it might seem like the suggested programme is just another way making secret settlements were it not for a comment from a spokesman for the church who clarified “Part of the terms of this voluntary program is that the victim is free to make their allegation public, but that is their decision”. The number of reported abuse victims grows across the globe and whilst it is important that they are compensated as far as possible, mediation rather than litigation is a much more restorative way to do this with its wide range of options on how to settle which is not limited to just financial payments.

A family law firm itself heading to mediation? When one of the partners of what is now Hollingsworth Roberts Means LLC, P.C, Kena Hollingsworth, filed a petition to dissolve the company it might have been thought this was the end of the business, but no. Kena says her primary purpose in filing the petition was “for the purpose of bringing resolution to the dispute between business partners, primarily through a court-ordered mediation.”

Kena and other 50% stakeholder Christina Zivitz had come to loggerheads over the business and Kena could only see one way forward, forcing her partner to mediate to settle their differences.

You may (with reason) think that lawyers should be able to deal with this kind of thing themselves, it’s far easier to deal with someone else’s issue than the one you are involved with, there is good reason that they say “a lawyer who represents themselves has a fool for a client”. You lose objectivity and focus on the wrong questions, I’ve seen many businesses (including lawyers) where the directors or partners are so wrapped up in the next step of the action they lose sight of the end goal or fail to realise that what they are doing is self-destructive and not productive. Mediation takes the heat out of many confrontation business situations allows the parties time to reflect and “get off their chest” what lies behind their feelings.

If you run a business and think you have a claim or a complaint against any of your suppliers, landlord or staff think Northwest Mediation first and allow us to come and help, mediation is a lot cheaper than threatening to wind up the company.

Finally, this week the CEDR reports an upsurge in mediation work in their Mediation Audit 2018 it reports an increase of 20% over two years to 12,000 mediations, involving close to £12 million in dispute value. CEDR isn’t the only mediator organisation and the Civil Mediation Council continues to work with the CJC towards increased use of mediation in civil courts as well as prior to issue of proceedings.

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 (and some lawyers) 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 or inheritance arguments contact Northwest Mediation on 07931318347 or via email at

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