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  • Writer's pictureEd Johnson

Public arguments not helpful in mediation

With the continued backlog of cases 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.


At Northwest Mediation I continue to use Zoom, Skype and FaceTime as well as the phone and emails to resolve disputes should I add I also do live in person mediation too! So please do not feel that you cannot contact me if you would like to mediate but wish to do so remotely.


Something in the news normally sparks my blog introduction but looking round I just can’t see anything in the news or current events about a family dispute, or how just shouting into the void doesn’t really bring you closer to building bridges, it’s enough to drive you spare.


OK so yes there is that book, I think my views on the outdated concept of monarchy are pretty well out there so it won’t come as a shock that whilst I empathise for Harry and the rest of his family who are clearly in need of some mediation assistance I don’t particularly take any interest as it’s rather too much like work.


There is a catharsis in telling someone your views, it’s one of the reasons therapy works, but you only move forward in a relationship if you are also prepared to listen, and airing your views in public is not likely to assist in reconciliation. Mediation isn’t necessarily about repairing relationships, some civil disputes involve parties who never have to see each other again so repair isn’t absolutely necessary though it’s often needed in some small way to ensure a level of trust for reaching agreement.


OK so when you search mediation you often find that someone has mistyped and in this case it’s meditation they meant to put however as I’m 10 days into 30 days of Yoga with Adriene it’s a nice little article!


Back to actual mediation now and an article this week regarding why IP cases should always go to mediation. Given the sensitive nature of IP disputes they lend themselves ideally to the confidential arena of mediation.


Quoting Chief Justice Warren Burger in 1984 the article reminds readers (and clients) that “Our litigation system is too costly, too painful, too destructive, too ineffective for a civilized people… For many claims trials by the adversarial contest must in time go the way of the ancient trial by battle and blood.”


With IP claims the costs are, what an old boss of mine used to call, “open cheque book cases” ie charge the client as much as you like as you’ll be working all the hours (I remember with horror those days photocopying and collating bundles at 3 in the morning).


James Astrachan in writing acknowledges that the number of trials in these areas are low but that only reflects that most will settle but given the long, winding road and costly road to that settlement either at the door of court or after months of statements and disclosure mediation earlier on is a much more controllable and affordable way to settle, if not all issues, then most of them and as often is the case is part settled civil mediaitons allows the remaining issues to be closed off pretty quickly after the mediation ends.


James also makes the point that I hadn’t considered previously, that the parties can walk away is not just a benefit of there being no pressure to attend but actually means that both sides are encouraged to keep things moving otherwise the process comes to a very sharp end.


I know this article is written state side but the same points apply this side of the pond, early indeed repeated mediation attempts are value for money and bring about conclusion without the gamble of the court room.

Another great article/video from Craig Turvey from Cooper Grace Ward this week, regarding when to have someone with you at mediation. Craig is talking about family mediation in civil mediation I encourage clients to bring someone with them, be it a friend or lawyer so they can discuss matters and not be sat alone during extended shuttle sessions (though I do try to give client’s work to do between sessions it is not always possible and sometimes they need to talk decisions over out loud, it's cathartic isn’t it, Harry?).


But as Craig highlights sometimes your best mate isn’t there for the best reasons, encouraging you to keep fighting, not to give “that much” away, isn’t helpful in mediation they need to be there as sounding boards not as advice givers (unless they are lawyers and we’re working hybrid stylee!).


A business client brought his mum (also a business owner) to a mediation not that long ago and I had reservations about her interference, justifiably wanting to protect her child even when the dispute was really a contractual dispute with a pretty narrow settlement window, however she was actually very positive influence as she refused to be drawn on her view and encouraged the client to think about the wider impact and how much time he was wasting for his business, honestly she was doing my job for me! So company at a mediation is a gamble for the mediator and the client as the mediator you have to be live to the risk and have the courage to interrupt and contradict the “friend” if they are taking things down the wrong path, it’s not easy but hopefully no one’s been offended by me telling them to “shush”.



Writing from the UAE Hassan Elhias this week has a look at mediators in contract disputes, not quite but almost repeating my mantra of mediation (or ADR) is cheaper, quicker and less stressful than litigation.


It’s interesting to see in the UAE statutes that there is specific non-judicial (pre-litigation) mediation as a discrete area to judicial mediation (post litigation court ordered) both types run on the same basis but clearly one already has judicial involvement so may need to go back to court after mediation for a final order to be made (like a Tomlin order in our cases).


UAE have a full list of qualified mediators available and if no agreement can be reached the court is able to step in and choose one for them, though you would hope choosing a neutral mediator was relatively easy I know I’ve been rejected (sob) previously in favour of some other mediator, I’ve also been nominated occasionally in two capacities as I work in various practices and I have found that quite amusing explaining that yes I am the same person and that strangely my fees are exactly the same!


The three pillars of mediation remain it’s voluntary (except apparently when it won’t be anymore), 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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