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  • Writer's pictureEd Johnson

Agenda setting in mediation

With the continued backlog of cases mediation is now more than ever the best choice to find a resolution for your dispute. Get your dispute resolved now so 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.


I caught some of an interesting program on Radio 4 this week, Evan Davis was chatting to business leaders about business meetings, both in the virtual world and in person.


It was interesting to hear one of the contributors say something I have always quoted when arranging meetings, that is that without an agenda no one knows what to prepare for and what they need to bring to the table (metaphorically and literally).


One of my several issues with the FMC method of mediation is that we are not permitted to tell each party what the other wants to talk about. In civil mediation that would be seen as bonkers, you literally need to prepare the papers in advance for me to read and exchange anything you want the other to see in those mediations. Yes new topics come up but normally in a civil mediation the parties are aware of what is in discussion.


In family mediation the topics tend to fall into two or three categories, kids, finance and (if married) the actual divorce process. But surely, you say, the parties know if they are falling out over the children. Well, yes but they may also want to talk about finances and if only one of them wants to talk about kids but both will discuss finance does then the current status of the MOJ voucher scheme will not be available to them. But aren’t kids intertwined in the finances, not necessarily, and it is for the parties to set the agenda.


I love an agenda, most mediators do, we’re trained (even if you’ve not been in a thousand business meetings before changing jobs) to have agenda setting as a topic at the start of each session, in civil you ask similarly for a position statement which guides the agenda but in family we do sometimes use the white board or flip chart to literally list the topics and tick them off as we go.


Our outcome letters talk about agendas and we’ll bring you back to the headings if we feel you are straying away from the agreed areas for discussion.


In my practice and with permission of the parties I let each know, broadly, what topics the other wants to talk about, as my other bugbear with the FMC approach is feeling like a client ahs come to talk about one thing only to discover the other doesn’t want to and the whole session dies on its arse at the opening, but they’ve paid for the full time!


One of the reasons I got into mediation was to stop the feeling that (as a litigation lawyer) we end up charging clients more than they ultimately benefit so that sort of result never sits well with me.


To me agendas are key to moving through a meeting smoothly being able to focus when clients go off topic, though flexibility has to be allowed. It’s also important to note what isn’t on the initial agenda may get added during the meeting or be “parked” to the next meeting (provided you genuinely keep a record of that issue so it can be mentioned in the outcome letter and added at the start of the following session).


Agenda in its more colloquial sense can mean people coming with no honest intent or at least to try and scupper the meeting or cause issues rather than resolving matters so we have to be very careful in using the word that it is understood by everyone to mean the same thing.


A trip down under for comments from Australia’s Mediator Standards Board via their deputy chair Stephen Dickinson alongside treasurer Linda Kochanski, noting the growth since his first involvement in 1993 and the expected continued flourishingof the profession he said “I think practitioners in the community now appreciate that less than 2 per cent of matters which find their way into the court system are actually resolved at trial, determined by a judge, magistrate or similar…


“It is, therefore, important not only to focus on the relief that’s available through the court system but also really what’s informing parties’ decision making in conflict and what their interests are and what their primary objectives are, which is something that mediation encourages, unlike trial advocacy, unlike litigation.


“I think the profession now understands it and also appreciates that it requires a different approach to dispute resolution and different skills. Hence, the importance of understanding what mediation involves as a process.”


Next to Nairobi where the Complaints Commission (for complaints against media and media outlets) has been leading the charge for mediation to be used wherever possible and recognising it is the best (quickest, cost effective) way to resolve disputes.


In the list of items necessary Willis Oketch lists preparedness, some might say getting the agenda correct(?) and engagement of the parties being up there so that ownership is taken on decisions made, something clients don’t always understand - until a judge takes away their control of the result.


Finally in St Louis the mediation team from the “tiny” Principia College from Elsah (let it go) has won an international mediation competition.


It caps a year where the team has done brilliantly throughout international competitions, I do worry about mediation as a competition that whole win-lose scenario is such a foreign concept within mediation that it feels rather clunky to describe winners and therefore by default losers, or second placed.


In mediation we’re all striving for the win-win or draw-draw to be more accurate, having said that I did judge a competition a few years ago and what I was able to feed back was that all the teams were clearly engaging in the important process, even if they were all looking at becoming lawyers first and foremost.


However splendid result for the team and shows great recognition of mediation at all stages of education. Hoping they remembered to set agendas, stick with the process and drag their no doubt excellently role played clients back to the table for discussions when matters inevitably start going off topic.


It’s national give something back day tomorrow (or some such title) so if you mention this article when you call tomorrow for a mediation process I’ll give you 10% of the normal price.


If that kind of selfless generosity of spirit (and certainly not just filling up column inches with additional words) doesn’t spur you into action I don’t know what will.


The three pillars of mediation remain it’s voluntary (at the moment), 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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