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Penalties for not Mediating

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. This week the courts have once again shown it is also dangerous not to mediate (even if you win your case).


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 are limits on physical meetings.


Nice article covering the impact of failing to mediate in the case of Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Aviva.


The Independent Financial Adviser (Mr Wales) sought damages for non payment of commission regarding his work on pension schemes for CBRE and Aviva.


Once again we see a case where even though successful the party who refused to mediate was penalised in their costs award. Here CBRE refused to take part in a three party mediation (which had been suggested at least twice during and before proceedings).


The judge held that failing to engage in ADR or give detailed response on the suggestion pre-action was a breach of the pre-action protocol.


On receipt of the second invitation prior to trial CBRE refused saying there was insufficient time (Northwest Mediation can arrange a mediation within a week should you need one) the judge stated that there was “nothing to suggest that the solicitors instructed by Mr Wales or Aviva [the other parties] considered that they had insufficient time to do so, indeed they evinced a willingness to proceed with such a mediation". The judge even went as far as to point out the longstanding commercial relationship meant the case was ideally suited for mediation.


Echoing Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 and the two more recent cases DSN v Blackpool Football Club Ltd (Rev 1) [2020] EWHC 670 (QB) and BXB v Watch Tower and Bible Tract Society of Pennsylvannia [2020] EWHC 656 (Admin) this case is evidence that having a strong case is insufficient reason to refuse mediation.


HHJ Griffiths in DSN said “The reasons given for refusing to engage in mediation were inadequate. They were, simply, and repeatedly, that the Defendant “continues to believe that it has a strong defence. No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution. Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in their ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money.”


HHJ Chamberlain in BXB (the facts of which are harrowing) said that even though “the Defendants could reasonably conclude that they had stronger arguments in [this] case, both as respects limitation and as respects vicarious liability. This did not, however, necessarily mean that there was nothing to discuss. One important purpose of a joint settlement meeting is to convey a defendant's view about the strength of its case. In any event, the possibility of agreeing quantum subject to liability provides a good reason to engage in discussions even in a case where the defendant is confident about its case on liability. In this case, that would have shortened the trial and avoided some of the intrusive questioning which in the event was necessary”


So what should you do if you think you have a good case? Mediate. Why? Mediation is not an acceptance that you are in the wrong or have committed any breach of law or offence it is an admission that you would like to deal with matters expeditiously and openly and not pump thousands of pounds into lawyers’ pockets and as these cases reiterate not doing so exposes you to costs penalties even if you win.


Over in the Southern District New York circuit Forex currency derivatives trader, Alan Levy, was working on a joint venture with the Bank of New York who then offered him a job.


He accepted but was denied a position at a subsidiary of BNY (Pershing) he says due to his age.


The parties agreed at case management stage that they would attempt to reach settlement by mediation to be held as soon as the parties could agree a mediator and arrange dates.


This is an example of employment law mediation with some big numbers involved given the pay brackets used by the companies but is further evidence that mediation is if not the first stop certainly an early stop in any litigation.

Meanwhile in our ongoing coverage of neighbour mediations we find in Northern Ireland Carál Ní Chuilín communities minister has urging landlords and tenants to use the service available to them via the Housing Mediation Service delivered by Housing Rights and funded by Carál’s department.


The scheme is available to all privately registered landlords the minister said “The private rented sector has grown significantly and is now home to more tenants than the social sector, housing many who are vulnerable and on low incomes. This pilot mediation service is playing a vital role in helping many tenants and landlords come to agreements on a range of issues, avoiding the need to go to court, preventing evictions and sustaining tenancies.


“I would like to thank Housing Rights for their work in this very important area. The pilot scheme will run for two years and my department will draw on the experience of the service users to develop future services for landlords and tenants.”


Housing Rights’ Housing Mediation Manager Laura Coulter added “The service has really come into its own over the past two months, when in a time of financial uncertainty and worry we have been able to help many private tenants and landlords deal sympathetically with each other to ensure lost income won’t result in a lost home. When both parties agree to participate in mediation an independent mediator with specialist housing knowledge helps the parties talk about the dispute and arrive at a solution which works for all.”


Clearly court is now your least appealing option for civil claims and family disputes, the backlogs are now headline grabbing so don’t hesitate to contact Northwest Mediation with your details using the chat button, filling in the contact form, phoning us or email, we can get back to you quickly and get the ball rolling often for free.


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 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 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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07931318347

 

Northwest Mediation, Stockport Mediation and Bramhall Mediation are trading names of Ed Johnson

(c) Ed Johnson 2016

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