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  • Ed

Voluntary or compulsory?

Last week I talked about the three pillars of mediation Voluntary, Independent and Private (VIP) quite often you’ll also see me refer to cases where mediation has been “ordered” so that the voluntary element has been removed. That’s not quite true, it’s still a voluntary process, you don’t need to reach agreement through mediation (you should if you want to save time costs and stress but you don’t have to) the obligation in these circumstances is to attend.

In this case the judge has actually refused to order the parties to mediate, primarily because the respondent argues the reason behind the stay in proceedings for mediation is so the applicant can hide information.

I normally can’t object enough to judges who won’t order mediation, but in these circumstances where the application is judged to be a tactic to prevent disclosure I can see the reasoning….however why not order the mediation but not the stay?

It’s not obligatory that the two go hand in glove, order the parties to mediate but let the timetable run, a bit of pressure on both sides to find a way forward would seem sensible and is often useful in mediation.

The case relates to Omniverse One World Television’s fight against the big Hollywood studios, Omniverse are in wind down and CEO Jason Demeo claims there is nothing left to pursue and fear that any settlement will be used as evidence in criminal prosecutions against the studio and it’s executives.

The Alliance for Creativity and Entertainment who represent the studios claim that Omniverse was distributing programming that they had no proper authority to carry, Omniverse in response rely upon a joint venture with Hovsat through which it claims to have been operating under a 100 licence without geographical limitations within the US.

Over in Richmond there has been an agreement for this case against Alec Leduc’s truck empire to attempt settlement by mediation. The dispute arises from Mr Leduc’s operation which moved to New Hampshire from Massachusetts last year. The state alleges he is using is premises not so much as a trucking yard as a junk yard, he in turn claims he is storing antique vehicles.

It’s the sort of case which cries out to be mediated, no doubt Mr Leduc has brought employment to the area and therefore there’s a benefit to the general populace of his work continuing, he in turn will want to continue operating and enjoying his collection of antiques (or rust buckets whichever case is correct).

An early intervention of mediation will bring such matters to a sensible and workable solution without months (or years) of court processes and thousands of dollars in waste costs, on this occasion neither party has been required to attend and they enter the process entirely voluntarily.

I was thinking about the analogy of mediation with one of my hobbies this week when I came across this article from John Sturrock.

The idea that the reluctance of solicitors and other lawyers to call on mediation is because they are unfamiliar with the process and don’t think they should need “assistance” is reflected by the number of repeat referrals we get at Northwest Mediation.

Once you try mediation and see the benefit to your clients it’s hard to argue you should not be requesting mediation intervention every time. With my other hat on I regularly tell clients they need to try mediation and encourage them (in a not so voluntary way) to offer it to the other side, so few on the opposing sides take up the request it remains clear to me there is a reluctance on the part of most lawyers to accept the help mediation brings.

As per John’s article we don’t always go straight to “turbo” but we definitely help with the uphill struggles and you’d be negligent not to think about mediation (oh and it obligatory on the part of the lawyers to consider mediation and ADR in those pesky court rules too).

On a final note on obligation South Africa now looks set to make consideration of mediation obligatory before issue of proceedings.

In SA the Rules Board for Courts of Law is keen to alleviate pressure on the courts and is proposing to make the consideration of mediation prior to proceedings obligatory.

If mediation has not been considered it will then be for the court’s to “encourage” mediation and ADR.

Managing director of Gillan and Veldhuizen, P.J. Veldhuizen, says “Mediation, which was introduced in South Africa as an Alternative Dispute Resolution (ADR), is a time- and cost-effective means whereby parties to a dispute can appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement,"

"The mediator facilitates discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options to resolve the dispute,"

"The rule will require the parties, when issuing summons or application or delivering a plea or answering affidavit, to indicate whether they consider mediation to be possible and to give reasons for their consideration.”

And if they don’t then as with the courts in England and Wales they could (I say should) be penalised in costs. I’ve yet to see a large up tick in the number of cases where the failure to mediate leads to a costs sanction, is that because Judges only ever see cases that failed to be mediated?

Any mediation has to be voluntary in terms of the conclusion, but that does not mean that taking part or at the very least considering mediation should not be obligatory as the CJCs recommendations slowly (oh so slowly) get put into effect mediation will become the starting point not the afterthought for your litigation.

Choose to mediate early and resolve your issues effectively, quickly and with less stress and costs than going to your solicitor.

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 (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, civil mediation or inheritance, wills and probate arguments contact Northwest Mediation on 07931318347 or via email at

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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