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Ed
Jun 19, 20195 min read

When to mediate and the Kobyashi Maru


A big question for most people approaching mediation is, when do I mediate?

The simple answer is – whenever you’re ready. Really, the sooner the better but there’s a case this week showing it’s never too late even right up to when you’re waiting for judgment to be handed down.

In the case of a former doctor at the University of Pittsburgh Medical Centre mediation has continued to be used even after an application for judgment has been submitted, now granted it’s only a summary judgment so not all the facts have been heard so as court cases go it is relatively early but equally a summary judgment could be the final judgment in a case if no appeal is granted.

Whilst Northwest Mediation always prefers to deal with cases at an early stage in proceedings (and preferably before a case has been issued) we have dealt with cases where there is judgment pending and trial dates listed, often it’s having the date for trial that spurs the clients into thinking about the amount of time they have and will waste at court when the case could be dealt with in a far more pragmatic way by approaching mediators.

In this case the claimant Joseph Bergerson, M.D is suing for over $200,000 in back pay following his termination of employment which includes pay for notice, incentives and overtime.

At the Ohio State University mediators have been called in following independent investigations which determined that Dr Richard Strauss had abused 177 men and that there had been failings by the University in dealing with complaints. Court proceedings are in the process of being brought against the University so in these cases the mediation approach is at an early stage of proceedings albeit after the initial investigations.

Michael Drake, university president, when announcing the mediation has said "On behalf of the university, our profound regret and sincere apologies to the survivors who were affected by Strauss’ abuse and for our institutions failure—and there's no other word for it—to prevent it"

The university says it wants to learn lessons from the failings and to be able to lead others on how to deal appropriately with any such complaints in the future, part of their approach is to mediate with all the claimants. Although the University has held in abeyance their argument that the complaints are limitation barred it knows there are proposals to remove that limitation similar to the one now in place in Georgia. Other steps being taken are the formation of a task force by the university including victims of the abuse.

The Ruili’s people’s court established a mediation centre back in 2016 to deal with the volume of claims between people and businesses trading between Maynmar and China, in this case the mediation takes place after litigation but before the court timetable has got into full swing. Whether it's food delivery or other goods and services between the countries.

Thanks to that early intervention 90% of those cases were resolved through mediation with the assistance of translators on both sides provided by the court service. Yours could be too if you contact Northwest Mediation.

We’ve mentioned before the New Zealand mediation bill which aims to help farming families and groups in financial difficulties and this week the proposals got an endorsement from the Federated Farms Union.

Here again mediation is deployed before the banks start debt recovery proceedings against the farmers involved, an early stage intervention saving all involved stress, time and money.

Vice President of the Federated Farmers, Andrew Hoggard said “Farmers are especially vulnerable to business downturns as a result of conditions that are often outside their control, such as the weather, market price volatility, pests and diseases like M bovis…Farmers are also facing a raft of policy changes, including around freshwater management and climate change, and these could apply even further pressure"

He reminded the creditors involved however that whilst mediation was positive step once farmers had defaulted “There is no substitute for good communication and we urge farmers and their banks to keep in close touch and build positive relationships in good times and bad, with or without farm debt mediation."

National President of Rural Women New Zealand Fiona Gower said RWNZ has been working with the Ministry of Primary Industries and others to progress this much needed service since our submission on the Farm Debt Mediation Bill originally proposed by Mark Patterson MP…Financial control is not black and white for farmers due to circumstances beyond their control and due to this complexity, creating a stand alone bill for farmers will provide fair treatment to all involved. Mediation between farmers, their families and banks will only be good for rural communities"

Damien O'Connor, agricultural minister, said "This bill supports the mental, emotional and financial wellbeing of farmers and farming families who find themselves in financial strife…I encourage farmers and lenders to have their say on the bill during the select committee stage."

And even after a lower court decision has been made mediation can still be a useful way forward.

Still in New Zealand billionaire Tim Roberts was granted permission by a lower court hearing to fly his helicopter up to 120 times per year from his own home to his country estates up the mountains in Wakatipu.

This meant flying over the property of his neighbour Allister Saville, who launched an appeal of the lower court decision as soon as it was handed down.

As a result of that appeal the court has allowed the parties to attempt a mediation to reach a settlement, it’s not your common or garden neighbour dispute but it’s not wholly different from use of rights of way and encroachment cases that Northwest Mediation has dealt with over the years.

In a final note this week I was reminded that mediation is often brought in when the parties feel they face a situation resembling Star Fleet’s Kobayashi Maru training scenario.

That test puts all prospective Star Fleet officers up against a simulation in which there is no positive outcome. Jim Kirk famously reprogrammed the system so he could have a positive outcome and like Kirk I don’t believe in the no win scenario and most mediators will tell you they don’t either.

There is always another option and another way forward, sometimes parties just need the time to dig themselves out of their entrenched positions and realise that there is a win-win scenario, and when should they do this? As you’ll have seen from the above examples, it can be at any stage but the sooner you attend mediation the sooner you save money, time and stress.

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 dispute or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes or inheritance, wills and probate arguments contact Northwest Mediation on 07931318347 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 mediation; property mediator; civil mediator; civil litigation; fast track mediation; injury mediation

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