Bad faith in mediation
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.
The rule of law is what fundamentally the country is based on, whether you’re a gammon spouting nonsense about magna carta (a fine pub at the top of Steep Hill in Lincoln) or fighting for the rights of refugees at the 11th hour before they are transported to Rwanda you know this is the case. That laws should be fair in drafting, unbiased in nature and evenly applied is sort of what you want (what you think those terms mean may differ depending on your ideology) but at the end of any argument you know that we live in a country bound by laws.
Sadly we have a government which is happy to ignore the laws and due to the ridiculous nature of the FPTP system and self-checks at parliament insufficient scrutiny of those breaches and seems to enter pretty much every negotiation in bad faith. I know this is a blog about mediation but mediation often requires a background in law and good faith or at least honesty and we frequently ask clients to consider the reality check that if matters do not settle in mediation then ”the law” is the next step.
Litigation remains a gamble, I used to tell trainee solicitors working for me it’s not necessarily who is “right” or what the “facts” were but who tells the best story and comes across as most believable at court who comes out on top, and that is your gamble. Those who say the law is an ass generally haven’t had the decision they wanted (for instance not shipping refugees off to foreign parts) or haven’t approached the court with full knowledge of what to expect (something with which mediation also helps) or entered talks with bad faith.
I used to think that governments would use the skills of mediation (nationally and internationally) to reach agreeable goals to find common consensus in good faith but at the moment it seems that our government’s goal is the preservation of itself and the rest of the world, the country and any laws (of god or man) be damned.
OK enough slagging off our broken government onto mediation news feeds.
Still dealing with bad faith or at least mediating in bad faith an article re-released from April this week originally here in which cases of bad faith post mediation are examined. Parties reach agreement but then fail to fulfil their part of the deal, as I said when I reported on this article in April if you come to Northwest Mediation and settle a civil dispute by mediation the mediated agreement is a contract at law (offer, acceptance, considering intention to be legally bound for fans of contract law 101) and enforceable as such.
That does mean issuing proceedings to enforce (unless you’re already in proceedings in which case the agreement will be enshrined in both agreement and draft consent/Tomlin order which you can then enforce within the ongoing proceedings). We try to make agreements as water tight as possible but sometimes parties lie (rarely) other times intervening actions occur (most often spending the money on something else) but having a clear agreement is the easiest way to ensure that the scope for breaching is limited and certainly in the cases in US reported in this article the consequences of such breaches clear.
As they approach mediation good faith is also needed and in this case the Surface Transportation Board has ruled that Amtrak needs and must be given access to traffic data previously claimed by CSX (a freight rail company) to have been confidential so that at mediation Amtrak can make informed decisions about the route of the Gulf Coast Train.
The board’s chair Martin J Oberman said “All parties should have the opportunity to fully respond to the evidentiary issues raised at the hearing…It is also the Board’s intent to have a full and complete record in such an important matter that affects the public interest.”
Bad faith now in the appointment of judges as mediators (I know gavels judges it's an old lazy trope sorry). This report discusses how well India had done with mediation centres, companies and individuals all working hard and getting good results.
But there is what might be seen as a cynical move to referring mediation cases to retired judges (not necessarily trained in mediation) and away form mediators trained and experienced as well as the formation of a new mediation centre staffed by supreme court judges who, with the best will in the world, are unlikely to be able to approach mediation in the same way as trained and experienced mediators.
It is a dangerous and damaging step to take mediation back into the court setting, it simply becomes part of the litigation process and detracts from the unique values that mediation and mediators bring to cases.
We’ve sadly seen similar here with certain mediation bodies being given fast track access to groups of or categories of cases (I’m not saying anyone involved made donations to the Tory party but it wouldn’t shock me if they had). It’s a sad day when the availability of mediators becomes lessened hopefully the monopoly the article talks about is a long way off for this country and can be rectified in India.
The three pillars of mediation remain it’s voluntary, 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, maybe for your TOLATA issue, 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 07931318347 or via email at email@example.com
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