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  • Writer's pictureEd Johnson

Drinking and driving in Mediation

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 uses 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 can be no physical meeting.

The losses all sectors of the motor industry have suffered during the pandemic was insult to injury for Holden Dealerships in Australia as reported here. With three years to the end of their franchise agreement with General Motors Holden were advised that GM was ending despite having previously encouraged Holdens to invest and assurance that they were “here to stay” with new models planned for the future of the brand.

GM had offered what they said was fair compensation, but as no agreement could be reached the parties are now starting mediation.

The difference in the parties’ positions is pretty stark, GM say that an settlement should be based on a profit of £1500 per car sold but Holdens maintain they have evidence that the real profit per car is more than four times that figure $6100.

GM responded by saying their calculations show that in some instances the genuine profit figure is $350 per car but are happy to stick to the offer, the old take this or we’ll offer even less manoeuvre (fondly adopted by many parents in negotiating with their kids over screen time during lockdown).

The confidential mediation has been arranged by the Australian Competition and Consumer Commission (ACCC) to avoid further public sparring.

From driving to drinking. Bronagh Conlon, the managing director of the Listoke Distillery (Tenure, Dunleer, Co Louth) and one of the co-founders have opted to resolve matters arising from her suspension via mediation. The distillery is famed for the Listoke 1777 Gin as well as housing a gin school (attendance at which has gone on my list of things to do after the lockdown).

Ms Conlon’s lawyer Padraic Lyons Bl told the court that the injunction proceedings could themselves be placed on hold as the parties had reached an agreement to attend mediation.

Mr Justice Michael Peart a retired member of the court of appeal has been agreed as mediator by the parties. In the meantime Conlon’s suspension has been lifted by agreement so the parties can proceed on as even a footing as possible.

In Dover (Delaware) the parties are also considering mediation to help resolve the claims against 261 local councils of the Boy Scouts of America.

The presiding judge (Laurie Selber Silverstein) has agreed an extension for the injunctions staying the claims another five months.

To benefit from the stay the councils must provide signed evidence by next month’s regarding the finances of the organisation (including real estate).

Whilst the councils are not technically listed as debtors in the bankruptcy of the organisation those acting for the victims of abuse have been clear they will pursue the council as related parties, and as the councils own many of the campsites and buildings at which the organisation’s activities took place.

Based in Texas the Boy Scouts of America had filed for bankruptcy in the face of hundreds of claims and so as to create a fund from which any compensation can be paid to the victims of scoutmasters and leaders over decades.

The numbers involved are staggering over 12,000 victims with as many as 8000 abusers since the 1920s with the expectation that at least 7000 claims will be made.

James Stang who acts for the committee representing the survivors is expecting “substantial” data being downloaded, collated and disclosed.

The judge has also appointed three mediators (Kevin Carey, Paul Finn and Tim Gallagher) to work with the parties to help resolve some of the interim issues as well as to look at the overall compensation claims.

The deadline has been chosen to coincide with the date by which any further claims must be submitted.

And finally whilst all discussions in mediation are confidential where they serve as evidence in support a rebuttal of an allegation of fraud at least some of the statements made in mediation may become admissible.

Let’s be clear this is an unusual case and in nearly all mediations there will never be any cause to break confidentiality.

Roth J restated the rule from Unilever Plc v Proctor & Gamble Co [2000] 1 WLR 2436 that without prejudice material may be disclosed:-

  • to show that an agreement apparently reached during the negotiations should be set aside for misrepresentation, fraud or undue influence (the “fraud exception”);

  • to show that a statement made during the negotiations gives rise to an estoppel (the “estoppel exception”); or

  • under an exception of rather uncertain ambit established in Muller v Linsley and Mortimer [1996] PNLR 74, in which WP negotiations were admitted to show that a party had acted reasonably to mitigate its loss in reaching a settlement of proceedings with a third party (the “Muller exception”).

Roth J found that it would be contrary to principle to find that, where a party (in this case Mr Lancer) was truthful in the mediation, its statement could not be admitted to rebut a case of fraud. Therefore either for the fraud exception or “by reason of a small and principled extension of it to serve the interests of justice” the statements could be disclosed.

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. 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

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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