Building Bridges or burning them
With the limited access to courts and lawyers 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 so please do not feel that you cannot contact us as there are limits on physical meetings.
You probably think I bang on about the confidentiality of mediation quite a bit, that’s partly because I realise the contradiction on reporting on mediations. This week the outcome of mediation relating to the removal of street art on Guadalupe Street in Santa Fe remains just that, confidential.
The 40 year old mural by Gilberto Guzman needed saving when the building it is on was scheduled for renovations (the picture above is not the mural involved holidays were note to Santa Fe this year).
Attorney for Guzman, Penelope Quintero, said "Our mediation has concluded, but unfortunately the mediation and outcome terms will have to remain confidential for a bit". The confidentiality was confirmed by Daniel Zillmann for the Department of Cultural Affairs who was not "at liberty to discuss the outcome."
One tends to think the outcome will become fairly obvious given the nature of the artwork. Guzman had wanted the state to cover the cost of preserving the mural, and the state was not keen to agree saying the artwork had list its colour and could not be saved or relocated, given the mediation has concluded and seemingly with an agreement I would guess a solution has been found.
You’d think when you consider what ADR is you would give a little thought to mediation and not just to arbitration but Abraham says over the past years he’s noticed parties tend to give little weight to that element of the drafting.
He uses two recent cases to illustrate his point. The first involving a personal injury claim from a dodgy water slide at a water park Rivas v. CBK Lodge General Partners (Camelback), 2021U.S. Dist. LEXIS 139345 (M.D. Pa., July 27, 2021). A claim was issued (what we’d think of as a Part 20 claim for an indemnity) against the manufacturer (Whitewater) by the water park being sued in turn by the customer.
What Camelback had failed to appreciate was that in their Resolution of Disputes clauses with Whitewater there was a provision that the parties if they could not agree would “next endeavour to resolve the dispute through mediation”.
Camelback argued without success that the term only covered direct claims relating to the work of the manufacturer and not indemnification claims such as the current one. The court considered the contract carefully and concluded that the mediation clause was not limited in scope and referred to “any dispute” not any dispute relating to work related issues.
“If the intent of the parties was to limit the requirement of mediation to “work”-related issues, then such qualifying language could have been included.”
Similarly in Texan case of Burke (claimants) v. Roberson, (respondents) (Court of Appeals, First District of Texas, No. 01-19-00920-CV, 12/27/20) the court refused to confirm an arbitration award because the parties had not followed their own agreement to engage in mediation before resorting to arbitration.
We often talk figuratively about bridge building in mediation in this case we are talking literally about mediation regarding the replacement for the Cortez Bridge in Florida. The current bridge connects the Cortez Beach on Anna Maria Island to the Mainland and there is a dispute over the size of the replacement.
The Florida Institute for Saltwater Heritage joined as complainants with former Manatee County Commissioner Joe McClash, former County Commissioner Jane von Hahmann, and Cortez residents Linda Molto and Joe Kane to object to the Department of Transport's decision to replace the current bridge which has a 17 foot clearance drawbridge with a fixed structure which will have a 65 foot clearance when it is constructed in 2026/27.
The group say that a structure with a 35 foot clearance should be sufficient and has poses less of a threat by damaging the flood plains.
Mediator Stephen Tabano has the task of helping the parties build metaphorical bridges in order to resolve how the literal bridge is constructed.
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 Northwest Mediation on 07931318347 or via email at email@example.com
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