top of page
Search
  • Writer's pictureEd Johnson

Imbalance of power - 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.


It’s been a bit of a break from blogging (sorry dear reader I know you’ll have missed me). Last time I wrote it was just as the Lionesses worked their magic on the pitch, three weeks later and I start with a very different story out of the same football tournament.


There are those who see a one off kiss in an impassioned moment as nothing, a simple mis-judgement on the part of a man excited by his team doing so well. Let’s be clear, I don’t. The power imbalance in that moment is such that it is, to me at least, a #metoo moment. I used to be kissed by someone who funded our practice, it was their way of greeting people, I can tell you now I put up with it as the power was theirs and I could not refuse.


It was uncomfortable and I should have said something, I could have done, I was an adult and they meant nothing by it, but that’s where we get into what we look at in mediation. It’s not just the intention of the kisser but the impact on the kissee. Had the kiss which brought about this comment been between a senior partner and junior member of staff or supplier (and back in the 90s I saw a lot of that) we’d all be pretty sure it was wrong. I’m not sure I follow those who seem to try and excuse the kiss, simply because there are worse offenders does not mean it should not be called out.


What we look for in MIAMs is not necessarily the action (though often actions are enough to exclude mediation) but the intent and impact, sometimes the coercion involves no physical action at all but the imbalance of power is there and unless we can find a way to redress it we cannot proceed with an honest and open mediation.


Another area with lots of attention this week is parental alienation, it’s a topic which comes up a lot, not always genuinely or fully understood by those who bandy the term around, there are certainly those who do alienate their former partners by influencing their children, but there are others who suggest it is happening when actually the alleged alienator is protecting a child from an abusive relationship.


There are no magic bullets to identify either forms of coercion and abuse when interviewing clients but they are matters we have to remain live to in all our works.


OK so now on to mediation in this week’s news.


In Turkey as of 1/9/23 all rental disputes are obliged to first be referred to mediation, and in the first week nearly 500 cases were affected by the new rule.


Justice Minister Yılmaz Tunç said “The mediator will prepare the ground and will not offer them a solution. The mediator will facilitate the parties in finding their own solutions. They will articulate their desires to each other, and in three weeks, or with an additional week, four weeks in total, they will conclude this process. In the event that no agreement is reached during the mediation sessions, legal action can be pursued."


It's been a while since I said what a great resource for landlords and tenants mediation can be so it’s good to be able to once again bang the drum for it, with another hat on I do some s21 eviction work, it’s soulless and not a great way to balance non-fault eviction with tenants’ rights and I do hope that when the new government is ushered in then address this issue. Landlords need to be able to end tenancies (if they want to sell the property, or no longer wish to be troubled with the difficulties arising from being landlords) without having to prove their tenants are in breach, the law needs root and branch reform in this area, and I hope when it happens here mediation will be the go-to solution under any the new rules.


Down in OZ and it’s Chevron Australia and the unions who represent workers in the liquid natural gas extraction industry who are heading for mediation talks.


The Fair Work Commission (which is such an Ozzie name for an organisation if it just added the word “dinkum” in the title it would be perfect) is acting as mediator between the two parties to try and avoid strike action.


Chevron representatives have said they are aiming to reduce the points in dispute, which is always a good aim. If you cannot reach a full solution are least reduce the areas of contention, often when we do this in civil mediations within a few days the remainder of the issues are settled.


Given the strikes will lead to allegedly billions of dollars of losses it would be in the interest of all concerned to find a solution (or maybe stop altogether and work in a non-fossil fuel industry we only have the one planet you know.)


Thankfully it seems that the action won’t impact on the global cost of gas, but don’t expect your gas company to listen to that advice they’ll still use it as an excuse to increase your bill.


Back on familiar ground with inheritance and land law now and judges telling disputing parties to get into mediation rather than the cost and delays expected at court.


Reuben Nyakund justice of the high court in Eldoret has said that parties would be better served trying mediation as a way to resolve disputes over land and succession rights. The problem of families arguing over estates is very much my area so it is good to hear the judge saying:


“We are suggesting that close family members wrangling over the estates left behind by their kin embrace mediation since the process will give them a win-win situation…We want to partner with devolved units and other sectors of the national government in creating awareness to the public and encouraging them to use the alternative justice system route in solving most of their disagreements instead of going to court”


He's not wrong, I had a case recently where the dispute revolved around an estate worth not the largest amount but was a considerable sum, neither party could or wanted to pay for lawyers (as the costs of a trial would ultimately reduce by at least half the sums in dispute), who got which piece of farmland was in dispute and we reached an accommodation which allowed the family to move forward.


It wasn’t easy and neither party got everything they wanted at the start but they were able to walk away having aired their differences and found a settlement everyone in the family could sign up to and live with. I also hope it meant they were able to begin grieving properly which both sides said they could not because of the dispute.


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


0 views0 comments

Recent Posts

See All
bottom of page