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  • Writer's pictureEd Johnson

Red lines, final offers and reluctance to engage 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 continues to use 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.

It’s a new year and as thoughts turn to resolutions why not consider how mediation can help you resolve your disputes? Too blunt for this early in the year? January and into February is often an incredibly busy time for initial calls for me, it not only finds parents realising they missed another Christmas with their children wanting things to change calling in, but it also finds business owners deciding to take the steps needed to either deal with a long outstanding matter or to change how they address their problems.

“It’s my final position” "I can't go any further" “my red line” “best and final offer”, all phrases used in mediation. I counted once and in a civil mediation case I was conducting the parties (on both sides with lawyers) told me that this was “their final offer” no less than 12 times.

I make no apology when I mediate that if you tell me it’s your final offer that I’ll tell you this story because whilst I’m not saying you’re lying I’m just pointing out that you don’t know your final position when you come into a meeting or how the other side’s response might change your approach.

So perhaps as this article suggests come to mediation with a range of values/settlements not a singular red line figure beyond which you won’t consider going (what if the other side is within £20 of your bottom line, is it still your bottom line or might settling right now be the right thing for you?).

I love Steve Dunn’s (of Miles Mediation and Arbitration) list of the types of ranges:-

“no brainer range” obviously unlikely but if an offer falls in this range it’s a done deal;

the “satisfactory range” ok but not the best you wanted;

“deliberation range” where most mediation offers end up in my experience it’s ok but it’ll take some work to find it acceptable;

“disappointment range” not the offer you want but the offer you need (aka the Chris Nolan Batman Begins reference range);

and beats the “gut check range” immediate response is no but take time to mull it over think about the alternatives properly.

Failing to prepare is to prepare to fail so come prepared to mediation with an idea of the range of settlement you would like, a good mediator will always help you through the possible ranges being offered and talk about the consequences of acceptance and refusal, you’ve come this far you know it makes sense.

As a civil and family mediator there are areas of work which cross the dividing line, inheritance is one and the care for elder relatives is another. I’ve worked with families who want to make sure mum/dad is cared for but can’t agree how or where they should be looked after.

Inevitably this involves some of the aspects of family disputes, old scars are reopened the unsaid hurt raises it’s head and needs to be acknowledged. Often it’s the party who is furthest away form the parent that thinks the closer one should be doing more or doing as they see fit, the distant family member may feel guilt and may not have expressed the appreciation they have for the work the closer sibling has to put in.

They are painful for all involved but (as with child cases) everyone has the third party’s best interest at heart.

Arlene Weintraub makes the point in this article when talking about the way the Schneider family had to deal with their mum’s care, with the help of a good mediator (as with the cases in which I have assisted) the client says “we were able to put a plan in place for each person to have a specific job” mediation allowed all concerned to “voice our opinions and concerns without getting emotional”.

I somewhat doubt the discussions were entirely conducted “without getting emotional” it’s always emotional but it doesn’t have to be aggressive or hurtful and that’s where mediation can help.

Finally this week one of my bug bears is examined by David Hossack and Laura McKennawhy lawyers don’t use mediation” odd you’d think when so many lawyers profess to be mediators.

It’s an interesting piece and reflects on other research as well as their own in Scotland, the reluctance seems to be reflective of lawyers seeming to think that by requesting a third party mediator they somehow down grade their own ability.

It’s not the case I work with lots of solicitors and barristers who know the best way forward for their clients is mediation.

It’s not accepting any deficiency in their own ability or indeed in the client but a fresh set of eyes a proper in depth discussion about the case and what lies behind it, what other people are affected by the dispute is much easier for an independent than the person paid to represent the client to the best of their ability. No lawyer would try to diagnose an injured client’s illness without reference to an expert so the mediator must become the expert of choice for settlement and avoiding the costs, delay and stress of court.

As the MOJ gets closer to making mediation obligatory hopefully there will be a voluntary move towards engaging in mediation without obligation.

The three pillars of mediation remain it’s voluntary, 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.

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 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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