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  • Writer's pictureEd Johnson

It's (not) all about the money - thinking outside the box in mediation

This is an interesting article (you be the judge of that comment) regarding the use of what I think of as flexible offers, particularly useful in shuttle or caucus mediations. You obtain permission to make a counter offer but have further permission to make a different offer if there is a positive movement from the other side.

Northwest Mediation saw in a mediation as recently as last month that knowing where one party has a scope for settlement that is outside the valuations the other party believes possible, allows the mediators to find a way forward that neither party thought possible.

As ever it doesn’t come down to just cash, an apology or an acceptance by one party that the other has found themselves in a difficult position in life can go a long way to resolving a dispute, sometimes it’s the words said that matter not the cash paid. That outside the box thinking is what we mediators excel at. Rather than leaving parties rooted in their entrenched positions we help them out, find ways forward and options and get them to an agreement.

An update on the mediation between the catholic church in Rochester Diocese and their insurers. You’ll recall the payments arise from the awful sexual abuse cases and that the judge had previously urged the parties to get into mediation.

Now proposals for the mediation process and identity of the mediator will be placed before the court next week.

Whilst the court’s in England and Wales do (still too infrequently) direct parties to mediate so the parties can benefit from the flexibility of mediation solutions the courts rarely require details of the mediator or the process to be followed. It helps, of course, for the parties to know that the mediator is Civil Mediation Council registered and that they are on the court’s panel of mediators (like Ed Johnson at Northwest Mediation is at Manchester County Court).

Big companies and their regulators know the benefits of thinking outside the box and there aren’t many businesses bigger than oil. The UK’s Oil and Gas Authority (OGA) has this week launched a mediation pilot scheme to help disputing companies with drilling rights on the UK continental shelf find solutions without either arbitration or, worse, court.

The OGA (in a comment which all mediators will find familiar) says that problems arise through “miscommunications” and “entrenched views”. Mediation is the ideal method of getting communications understood and/or recommenced and helping parties find their way out of entrenched positions.

The OGA has quite wide powers on dispute resolution open to it already but it would rather the parties dealt with their own issues with each other through the use of a third-party mediator at the CEDR (a mediator membership body similar to the Civil Mediation Council).

Meanwhile in South Africa Judge President Ephraim Makgoba told delegates of the “Mediation Justice For All” conference that new rules would be brought in to require disputing parties to attend mediation as a prerequisite to the issue of proceedings.

Speaking at the Fusion Boutique Hotel in Limpopo he said “The rule seeks to speed up the process of dispute resolution and leave disputing parties satisfied and everyone leaving the room shaking hands”. The shaking hands bit may not happen as often as we’d like at Northwest Mediation but settlements are usually achieved which allow the parties to move on.

Down under it’s financial advisers who are seeking mediation with financial advice corporate giant AMP. Kate Carnell the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) is pressing AMP to mediate with the owners of up to 250 financial advisory businesses which it is seeking to remove from its panel.

If the owners seek to sell the businesses back to AMP as a result of the move the owners are debarred form acting as advisors for three years. This in turn would stop them working and because of the way the businesses were funded by loans from AMP could end up with the owners selling their properties to repay their debt.

Kate said “Many of those planners who borrowed from AMP to buy into the business at a set price, now face losing their homes and their livelihoods, as the financial institution seeks to impose a three-year restriction on working as a financial planner

"My office has met with AMP and although they signalled they were open to mediation, they have yet to confirm their participation.”

She added “Small businesses in the financial planning industry have faced a great deal of turmoil in the aftermath of the banking royal commission, with hundreds of planners bearing the brunt of brutal restructures and fire sales by banks and wealth funds…We remain concerned about a number of behaviours that may include the conduct of lookback audits, financial planning licensors shifting responsibility for client compensation payments to licensees, short notice periods provided to licensees exiting the business and restraint of trade provisions.”

She is pressing AMP to extend the dealing for the removal of the businesses from the panel, waive the debts and/or remove the restriction on trading.

In mediation all options are on the table including overriding previously agreed contractual terms or “simple” damages.

As we’ve said before choose to mediate early and resolve your issues effectively, quickly 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 (and some lawyers) 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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