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  • Writer's pictureEd Johnson

The Latest Developments in 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.


This week we had an added indoor feature, the burst pipe in the middle of the afternoon had all of us homeworkers shouting the other to turn the tap off then realising none of us were in the bathroom!


So I write this from a slightly chilly house waiting for the plumber to pop in and restore normal function.


I thought that I could segway into divorce being like a burst pipe, for some they know it’s coming, see the signs and do nothing until it explodes, but even for me that was a bit tortuous and (given no one even suspected the pipe was going to go) doesn’t really work as a metaphor.


So let’s look at how we dealt with the problem. In the traditional way we initially looked for someone to blame, but on realising our mistake went into action as a team, three of us were in and one went outside to turn the water off, one held the now exposed pipe and aimed it into a bucket, and the third gathered towels to try and mop up the floor while the tank emptied.


It was cold and damp and not how we wanted to spend an evening but it was necessary (you see where I’m going?) but pulling together to do an unpleasant but necessary task meant that things did not get worse, the kitchen ceiling is still there (checks, touches wood, says a hail mary) and the plumber is on his their way.


Often in mediations involving children I talk to clients abut the “job” that being co-parenting the child, you don’t necessarily get on with your colleagues in a job but you do it for the outcome, and yes sometimes it can be unpleasant and you have to hold your tongue (and your nose) and get on with it.


It hopefully doesn’t sound as preachy as that reads when we discuss the analogy in session!

Civil mediation (and it’s the annual conference these next two days) can have similarities especially if the parties are intending to carry on working or interacting with each other, whether as landlord and tenant or employer and employee.


Of course one of the many good reasons to go for mediation is not just to keep on track relationships, or change the nature of the relationship for the better but also to avoid the costs associated with going to court.


Twice this last week I’ve had clients tell me their solicitors have suggested the cost of trial will be tens of thousands of pounds, but even in smaller cases the fees are set to go up as the consultation begins with the Ministry Of Justice on how to ensure the services it offers are supported financially.


If you, as I, have sat on the phone for the 45 minutes waiting to get through to the local court before being cut off, you’ll know that even speaking to the court in the first instance can be difficult as the staff simply aren’t there, I’ve mentioned before the case of no judges available at our local court so the hearing was adjourned for 9 months. Clients really don’t believe me until they go away and try (and inevitably come back) that the court system isn’t creaking it’s cracked.


Tinkering with the fees will raise more revenue to support the system but without proper support and more overreaching change I cannot see the court system getting much better, it has been better, but it has never been cheap and never has it been as swift as mediation can be.


Give me a call, drop me an email, it’s worth knowing there are better ways to deal with your dispute than court.


Still with the Law Society Gazette and we’re keeping a close eye on the outcome of Churchill v Merthyr Tydfil County Borough Council which will potentially bring about obligatory civil mediation, I don’t think it will be as clear cut as that, a fudge is always a possibility (though having just heard the Supreme Court’s decision in the government’s Rwanda plan maybe not).


The original decision is that forcing parties to mediate is a breach of the ECHR, something from which we should all be very reluctant to depart! However three of the mediation representative bodies (including the CMC) have intervened to try and overturn that decision so that parties can be ordered to attend mediation. The case is about Japenese knotweed incidentally.

Attendance is one thing, engagement is a second and resolving in mediation yet a third – hence my belief there will be a fudge. Yes the court will probably say that parties can be ordered to attend mediation, but they will not be required to settle in mediation -and no mediator would want to it is perfectly reasonable to encourage by order mediation, however mediation decisions have to be voluntary so what I believe the court will not be able to say (as it would be a breach of the ECHR) is that the parties must reach an agreement via mediation, equally I can see the court making all forms of ADR possible (so arbitration would be one way to go which in some cases might be more to the liking of the parties).


There are more wrinkles in Churchill as the council’s own complaints process wasn’t used, it’s a form of ADR so the court could make some form of ruling regarding the use of available processes and duck the question on mediation entirely.


It will be interesting to hear from Alex Chalk the current (at least at time of writing) lord chancellor and secretary of state for justice in his opening speech at today’s CMC conference.


Tehum healthcare provides services to inmates in the US, they’d reached a previous settlement running into millions of dollars through a mediation previously, only to find that the mediator had a relationship (and we’re not talking knew from being in court) with one of the lawyers involved.


Independence is one of the three pillars I talk about in mediation every week, having a romantic relationship with one of the representatives in a mediation is about as big a conflict as you’re going to get.


Yes I often know the lawyers in cases, it’s hard to be in this job for any length of time and not come across the usual suspects but it should have been obvious to the mediator (and indeed it was) that when you live with the representative of one party you cannot be unbiased and they should have let someone else take the chair.


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


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