The VIP of 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 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.
I always start mediation with the same three points, the pillars of mediation, the VIP, voluntary, impartial and private. I have to say it’s voluntary (even in family cases mediation is not obligatory – although considering its use is hence the need for a MIAM if you’re not proceeding to mediate) I don’t like that it is, but it remains the case that you do not have to mediate. You should for all the reasons I espouse every week, it’s quicker, cheaper, less stress is involved, you can now do it from the comfort of your sofa while we zoom you, you keep control of the process and resolution, even if you’re not 100% happy with the outcome at least you didn’t just ask someone else to take the tiller of your ship and steer you into Charybdis.
The Youth Bar Association of India has recommended that the V be removed and asked the Supreme Court to make the use of mediation obligatory at the pre-issue stage (I’d suggest that it be encouraged at all stages). Partly this is to help with backlogs of cases (which seems to feature internationally as I blog every week) but also to stop cases getting into a system which was never designed to cope with every dispute.
Litigation in the UK according to the pre action protocols should be a last course of action and yet it remains the first call to most of the public. Why is easy to see, traditionally any dispute was a matter for lawyers and once in the hands of lawyers (traditionally) they have been reluctant to do anything other than litigate, after a brief exchange of threatening letters with possibly a one line “our client will consider ADR”.
Don’t get me wrong it’s a criticism I level as much at myself as my colleagues in the legal world, at least historically that was my approach. But I agree with the Indian Youth Bar mediation has to be pushed forward, pressed into the psyche of the public and put on the front foot not the last resort following an exasperated district judge seeing two intractable parties about to spend thousands on an unsatisfactory system that gives neither what they want and most wondering how they ended up spending that much time effort and stress getting a result they could have agreed without a man in a wig (yes I know they don’t necessarily wear them these days, I’m old).
The YBA went as far as to remind the court of its own judgment in K Srinvas Rao v D.A. Deepa 2013 where it ordered mediation centres to be set up across India, despite which only three high court centres actually did.
I genuinely believe the English and Wales courts are gradually moving towards something similar, the pilots seem to be getting some traction and although not every case I work on a s a mediator reaches an immediate resolution most do within days of the mediation or as a result of the parties being given time to consider their options take the wheel and steer a course through Scylla and Charybdis.
Meanwhile others taking the up option of mediation are the National Union of Metalworkers of South Africa (NUMSA) with their ongoing strikes in response to the actions of Bombela Operating Company and its dealing with the Gautrain.
NUMSA said via twitter that they have asked the Council for Conciliation, Mediation and Arbitration to step in as independent mediators to assist.
Mediation has been suggested in the cases brought against construction plant giants JCB for their breaches of process and procedure when supplying equipment to assist in the demolition of Palestinian homes.
Initially human rights abuse was the basis of the claims but JCB was quickly cleared of any such wrong doing.
Lawyers for Palestinian Human Rights (LPHR) now accept that JCB does not cause adverse impact to human rights, but contributes to them through “actions and inactions”.
The allegations which JCB rejects are that by their action or inaction they are
contributing to adverse human rights impacts by selling products that facilitates another entity to cause harms
failing to stop the sales of products that facilitates another entity to cause adverse impacts once there is knowledge of these harms occurring
failing to seek ways to prevent and mitigate human rights impacts that are directly linked to their business operations and products
failing to have a human rights policy in place
failing to carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks
The NCP confirmed that allegations that JCB contributed to human rights abuse did not merit further investigation but that their lack of human rights due diligence processes, its business relationships and its human rights policy commitments needed to be further looked into.
JCB released a statement saying “We are very pleased that the UK NCP has dismissed at the earliest opportunity any suggestion that JCB is involved in, or causes or contributes towards any human rights abuses whatsoever. There was no basis for the Lawyers for Palestinian Human Rights to make their complaint alleging this.
"As an organisation JCB does not condone any form of human rights abuse and we have a consistent record of providing urgent and substantial support in response to natural disasters around the world.
"While the NCP will now examine JCB’s human rights due diligence process, it has made clear that its decision to do so is not a finding against JCB and does not mean that it considers that JCB has acted in any way inconsistently with the OECD guidelines. We welcome the opportunity of engaging further with the NCP on these matters.”
Director of Lawyers for Palestinian Human Rights Tareq Shrourou said We welcome this initial assessment and the UK National Contact Point’s acknowledgment that there are serious human rights issues raised by our complaint under the OECD guidelines for multinational enterprises which warrant mediation or thorough investigation.
“JCB’s apparent failure to address the material and prolific use of its products in demolition and displacement incidents that cruelly impacts Palestinian families, and also its use in settlement-related construction which creates pervasive human rights violations, must cease immediately. We look forward to constructively engaging with JCB and expect it will do the right thing by complying with its human rights responsibilities.”
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. 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 firstname.lastname@example.org
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