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  • Writer's pictureEd Johnson

Black and white thinking 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.

As I type this England's Lionesses are preparing to face Australia's Matildas in the semi-finals of the FIFA Women’s World Cup. I’m not a fan of football and whilst I will watch the occasional international match it tends to be more by accident than any particular interest.

Not “having a team” or “being interested in football” has over the years been something of an issue for people, it apparently either suggests a lack of masculinity or that I “hate football”.

In the pseudo black and white world of online and in some cases main stream media “not liking” or “disagreeing” has become synonymous with “hating” or “being against”. It comes up a lot in mediation, think of the one party who is not fond of their mother in law, this is fine when the couple are together but post breakdown of the marriage it becomes “you’ve always hated her”.

That leap of logic interpreting disagreement as hate is a major problem in discussions. Simple disagreement has fallen out of the popular discourse. It is of course driven by the way the press talks and in a lot of cases their servants, right wing politicians. Rees Mogg talks about the blob and people being woke, as if there is a single driving force behind people who disagree with this government’s contemptable policies on immigration, the environment, international charity and tax as opposed to many people from disparate walks of life disagreeing with things they see as wrong for different reasons. Incidentally if being woke means being aware that my actions and words have an impact on other people then I’m happy to be woke all day long, what we say, and do, in life echoes in eternity (as someone may once have said).

In a mediation context what is said and done echoes at least into the near future of your relationship with the other party so don’t be shocked when I stop you from using pejorative words as they prevent continued conversations and reaching your goals. It’s also easy to stop listening to the other party if you persuade yourself that they are simply wrong in everything they say and do (it’s the “lah lah fingers in my ears I’m not listening” approach of Trump et al if you don’t have to think about what’s being said you never challenge yourself or open your situation to change).

Entering mediation is partly about accepting that you will change your position, that’s not a sign of weakness, quite the reverse, many times increasingly over the last few years public figures could and should have had the courage to stand up and say “I/we were wrong” when it has happened it’s always a show of strength, “everyone makes mistakes, I became a judge” is the quote I often refer to in this context something said to me when I was precisely one hour late having had a major diary entry fail. Having acknowledged the error was mine alone (not a secretary or anyone else) the judge went on to give the order I sought, and no it never happened again.

Mediation only happens because people make mistakes, or change their minds, or something happens they were not expecting so it is no weakness to accept change of circumstances or position or to consider forcing the other party to do so shows you’re in a position of strength. Be strong, come to mediation, I’ll help you sort your dispute in a quicker, cheaper and much less stressful way than if you go to court.

So turning to errors, mishandling a corpse is a up there in the top 10 if not top 5 of things which can go badly wrong. Years ago I defended a funeral company who had laid the fake turf over the edge of a grave resulting in a mourner going into the grave after the coffin. It was the stuff of light comedy had it not been real, the injuries were quite severe and on every report I remember adding in that, whilst at the time there was no specific damages claim in law for the psychological element (without diagnosed condition) we should bear that in mind when agreeing damages.

In Pocatello Lance Peck was the owner of the Downard Funeral Home (now closed) and is charged with many offences from his behaviour including petty theft while acting as a mortician (undertaker as we’d say). The aim of the mediation in this case is in part to avoid the families involved from having to give lengthy evidence under cross examination, given they are all going to be grieving and that such cases inevitably re-open the pain of loss.

As you know I do quite a bit of inheritance mediation and have had occasion to work with funeral homes but not on this scale and not for the list of alleged offences Lance faces.

Bannock County prosecutor Stephen Herzog said "When thinking of the families impacted, the benefits of mediation outweigh the benefits of a trial…We will be able to provide some degree of closure for the families in the near future rather than dragging them through what could be another year of stress."

It’s been a while since I had an article with a nice list in it, and seeing as our youngest has finally (2 year waiting list thanks Tory government) seen her orthodontist for her brace that it is in the context of a dental employer’s guide to mediation it seems relevant to me. These steps apply in all mediations it’s interesting to see them from this aspect however.

1. Set the ground rules and have them agreed, the usual sorts of things apply listen to understand not to respond, speak for yourself not others, avoid blame or use of words that imply immovability

2. Set out the process, you need your clients (or employees in this case) to know what is going to happen what’s expected and when

3. The mediation itself – use all those skills of reflection to ensure all parties know and understand what has been said and done how that has impacted and work through to a conclusion that everyone can live with, avoid saying that they’ll be “happy with” it that’s never going to be the case but if they can live with the result and move forward it’s better for the employees and the business. Always get them to commit to the decision in writing there is a psychological power of committing to paper and your signature what you are going to do (and from an employer’s perspective it covers your back side in any tribunal).

Speaking of numbers the mediation the Dubai Chamber of commerce this week confirmed it has received 75 cases for mediation in which nearly 50% reached conclusion. Given the value of the whole of those cases received was AED 42.3 million (around £9 million) that’s not small result and these are only the first half of the year’s results.

President and CEO of Dubai Chambers Mohammad Ali Rashed Lootah said of the results that the “Dubai Chambers remains committed to protecting the interests of the private sector and the emirate’s dynamic business community. Our mediation services represent an essential tool that enhances the competitiveness of the local business environment and the ability of companies to overcome a wide range of challenges. The business community's use of these services reflects the level of awareness on the importance of settling disputes amicably to serve the interests of all parties.”

The Chamber of Commerce has a discount scheme for mediation for it’s members so there are burned in incentives to try mediation first and foremost, it’s not the UK but it’s a good sign nonetheless.

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

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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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 import


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