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  • Writer's pictureEd Johnson

Actions speak louder than words

With the continued backlog of cases mediation is even more so now than ever the best choice to find a resolution for your dispute. Get your dispute resolved now while you can’t go anywhere you can really concentrate on what’s important and what deserves your time and energy.


Northwest Mediation continues to use Zoom, Skype and FaceTime as well as the phone and emails to resolve disputes should we add we also do live in person mediation too! So please do not feel that you cannot contact us if you would like to mediate but wish to do so remotely.

Happy new year one and all.


I was listening to the radio this week and there was a discussion about the certification of the most recent production of Lady Chatterley’s Lover (Netflix) with Evan Davis and Siobhan Synnot (I do hope that is the correct spelling the BBC website didn’t list the interviewee).


The important comment she made was that in terms of the words used in films it seems that actions are now more important than words, so that where certain words previously would have almost automatically raised the certification to 18 now it is more often the actions of the characters which change the certification or in some cases the intent behind the words.


Mediation is often about words, using the right ones to understand parties, picking the right phrases to use to help and elicit details that may have gone unheard before. Of course the intent behind the words can be just as important, when a client says “of course you did” they might be complimenting the other party for their normal assistance with for instance the children or they may be using it as a barb “typical of you” is the other interpretation. But mediation is also about actions. The past actions of what eld us here and also the future actions of putting into effect the agreements made, We expect the words of mediation (the agreements, assurances, draft orders) to lead to actions, following through is a dreadful phrase but it is what needs to happen to indicate a successful discussion in mediation.


And how does one make sure that actions will follow the words? One idea is to put yourself in the shoes of the parties. As this article suggests it’s an idea for advocates as well as mediators, if you can understand where one party (as an advocate the other party) is coming from you can not only better understand your client’s chances of succeeding but what might move things forward.


As mediators we are always trying to understand people’s actions we can then better explain them in whatever words seem appropriate whilst helping the other party appreciate what has happened or needs to happen.


Walking a mile in another person’s shoes has always been the basis of true understanding, it allows you to find empathy with parties without empty words of sympathy or the apathy of just being here for the payment.


If you can take the step into someone else’s position then you find the words you use become more meaningful and less a trite reiteration of “what we normally say”, making sure you stand in those shoes (or sit in their chair) you get their perspective, their areas of doubt, and thereby become not only more effective communicator but a better mediator.

And whilst words in court go a long way words and actions in mediation go much further as recognised by the judge in the ongoing case between two cities in America, Bristol, Tennessee and Bristol, Virginia.


The dispute is all over BV’s landfill and the fragrant perfume thereof, BV wanted to have matters settled in court but the magistrate has determined that doing so is an unnecessary waste of time and (more importantly) tax payers’ money for both cities so ordered the parties to attend mediation.


That action actually highlights that any resolution reached by court can be reached in mediation, there does not need to be judgment if the mediator is skilled enough in listening and challenging a way forward will be found. Parties when acting for themselves find it hard to move from entrenched positions but when challenged with the reality of the court gamble (and in this case no doubt the risk of not getting re-elected) will often find a way forward. Not walking away happy but happy to walk away.


In an article discussing how our (mediators’) actions of habit can have an impact on mediations Art Hinshaw discusses what he sees as being the need to tailor initial sessions in civil mediation to the clients’ needs. I quite agree with him that just because “it’s what we normally do” doesn’t mean it’s what we should always do.


I’ll often start even what will be a shuttle (caucus) mediation with both parties in the room, even if they are initially reluctant to do so having them face to face informs them, me and their advisors about certain aspects and personal interplay. It’s information you may store for later to bring out when challenging the “happy to go to court” statement, are you really prepared for that when you can’t even sit in a comfy meeting room with the other party?


The link is just an extract but within is the full article which is well worth a read and well worth considering if what we normally do is shorthand for not doing it right.


It’s difficult when you deal with family cases as there are constraints (I hesitate to say unreasonable) by the FMC as to how matters have to be dealt but even within these confines there is flexibility and I am always live to how clients feel best served. If there is reluctance that’s fine but the basis needs exploring, there are very good reasons for parties not to be in the same room (irrespective of whether it’s a family or civil dispute) but there are good reasons to get people together to get them talking or more accurately listening.


Sometimes when faced with parties who present as not wanting to be in each other’s presence without reason even after exploration I play the “it’s your time you’re wasting” card from primary school, yes it’ll take longer if we have to do the introduction twice and often in civil the parties hearing each other’s voices and their opening statements can be influential in moving matters forward quicker.

Presenting (or more often re-hashing) the same arguments that have been laid out in in correspondence does little to move things forward but actually having a party talk with the other side is movement. Of course I’ll never force a client to be in the room with another person they don’t want to (and I note a trend that when represented more junior lawyers prefer to keep their clients separate not sure why that is fear of the unknown?) but I will always take the time to understand the reasoning and if appropriate and permitted let the other party know why reminding them that the manner of the mediation remains part of the flexible nature of the process which they control and would not do so in court.


The three pillars of mediation remain it’s voluntary (except apparently when it won’t be anymore), it’s confidential, the mediator is independent, by using those pillars to support your work the parties keep control, save costs, save time and energy and reduce stress. Finally this one is mediation, mediator jointly appointed, areas of discussion agreed and intention to be bound by the outcome.


In person or via electronic media as we’ve said before choose to mediate early and resolve your issues effectively, timeously, and with less stress and costs than going to your solicitor so you can get out choose a different path, not quite the road less travelled but perhaps the path less adversarial. You have an interest in the outcome the sooner you get round the mediation table the quicker you can move forward and avoid the grilling a cross examination in court would put you through.


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 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 me at Northwest Mediation on 0161 667 4418 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 wills probate mediation; property mediator; civil mediator; civil litigation; fast track mediation; injury mediation

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