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  • Writer's pictureEd Johnson

Dealing with "failed" 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.

You learn more from your failures than you do your successes, so they say. Whoever they are may have a point, though we all much prefer the successes.


In mediation I am always disappointed if a mediation does not reach a complete settlement or round off every issue in dispute. When it happens, as the mediator, you are encouraged to go through reflection and consideration (as you do with your perceived successes as well).


The difficulty with that is that in a busy work schedule running three jobs, as I do, finding that space is difficult, it’s one of the reasons I like running (shambling) and occasionally hiking on my own. Engaging with nature and letting the mind wander and then focus on specific issues really clears the mind, unfortunately the point between non-wholly satisfactory mediation outcome and run leaves a gap of several hours or days where I’m basically going through a grief cycle. That can impact on the way I deal with other people (it’s not hugely helpful to be angry when trying to deal with awkward solicitors in one of the other jobs and your normal “rise above it” attitude is less in play than your “perhaps I should tell them what a ****** they’re being” approach). Running not only gets rid of the post mediation adrenaline hangover but also gives you time to think over what went well and what went less well in the session.


It's easy to wholly blame yourself as the mediator with conduct it must be your fault. It never is (in my experience). When you reflect there are always other questions you could have asked or avenues to explore that did not come to you in the moment but not finding a solution is more often than not because either a party is not prepared to be realistic about their case (perhaps believing it is a sure fire winner – known to most as a non-existent being in legal cases) or has not come to the mediation with the right mind set.


Mediation is an assisted conversation leading to a compromise, if you’re not prepared to talk openly and honestly or compromise I’m not quite sure what you’re doing in mediation. Some of the risk of that can be alleviated by the preparation of clients for the mediation, but ultimately if you have two people absolutely unwilling to accept anything the other says, or one decides to try and trick the other side, massively over egg the pudding of their case all they do is damage the relationship with the other party and once the trust starts being damaged in mediation by attitudes the chances for resolution slip away.


It's hard because it doesn’t happen often but reflecting on my most recent “not wholly satisfactory outcome” I can spot matters which did move forward, where points were made which will help the parties in the future (though of course they are not points which could be relied upon in court they are points which may help the parties focus) and ultimately may result in those parties having narrowed the issues coming back to mediation once more evidence/time/stress has passed. I hope so as there is always more to do but sometimes time does not allow for it.



One ADR attempt that has had what would appear to be a wholly successful outcome is that between the major studios in America and the Writers’ Guild of America with agreement being reached by WGA allowing work to recommence on many films (including most importantly in this house Deadpool 3) and TV shows.


The detail of the agreement hasn’t been released as the terms need to be ratified by members, however it is understood that some of the greater concerns regarding the use of AI in writing have been put to bed….let’s say for now.


One of the issues I noticed was that WGA wanted to have an agreement about the minimum numbers of writers on a show, one presumes that would be a little difficult to enforce where a one or two person band is writing the script (Gervais/Whaller-Bridge) but my inside knowledge of TV is very limited so presumably there are other “writers” on a show.


It’s a good result and we now look to the newly unionising SFX teams in the US to see what they will do in terms of action, AI is already hard at work in SFX as you’d expect so the dispute here may be even more tricky.


In a case where a Gullah land owner (Josephine Wright) is being sued by a Georgia based building contractor (Bailey Point Investment LLC) the court has ordered parties to attend mediation.

Wiki tells me Gullah are an African American ethnic group and you may be familiar with the case as it drew some celebrity interest. It’s at the heart a land and property dispute with the developer claiming Josephine had a shed and buildings encroaching on up to 29 acres of land (one hell of a shed that). The Wright family home is essentially surrounded by the development land and whilst they have already moved the shed and other parts of the property they allege they are still being harassed by workers and employees for the builder.


The Wright family has raised thousands to help it with legal fees and the local planning authority has prevented any further building until the issues are resolved, it’s nice to see the local authority helping the individual out on this one as often the lone objector to development finds themselves at odds with the planning authority. The Wrights have had the property since the American Civil war so it’s not exactly a land grab by a greedy individual spotting a chance at a few quid!


And as I rapidly approach an age milestone and more often my thoughts turn to my tiny pension pot it’s interesting to hear the wise words of Dr Jocelynne Scutt on why mediation is the only way to resolve the 1950s women’s pension issue.


You won’t expect me to be shocked by the government kicking the argument into the long grass with the age old “we’re waiting for an ombudsman report” excuse, so beloved of the current government to avoid dealing with an issue and hoping it will be (to use Gillian Keegan’s words) “someone else’s problem” in the not too distant future.


However the delay in paying pensions for women born in the 1950s is appalling, the movement of retirement ages is at best an attempt to shift financial burdens and at worst simply playing with numbers on a government spreadsheet, and all the while the numbers involved slowly and inevitably reduce (though there are still millions so this is not going to go away).


Clearly mediation is the way to deal with this as with many multi claimant issues.

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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