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  • Writer's pictureEd Johnson

Tips for 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.


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.


Downtime this weekend saw me and a group of other similarly minded “enthusiasts” running about on Baildon Moor fighting an imaginary army of tin men. It’s important to get time away from work, and I will generally ask clients to mediation when I first meet them how they wind down, who supports them and how they intend to decompress after mediation sessions. It’s as important for us as it is clients after several hours in civil or family mediation session or even several shorter MIAMs in a day you need to turn off and switch to relax mode.


I haven’t been able to get out for a jog (my usual wind down routine) since last summer due to injury so was quite pleased at the weekend’s performance but however you relax (provided it’s legal and safe) it’s something needed when dealing with the stress of a claim a case or a dispute, whichever it is whilst mediation is involved, tiring and to a certain degree stressful it is in no way as stressful as going to court, take it from someone who’s been both sides and represented both sides.


Other tips for mediation this week comes from Robert Mnookin managing three tensions in negotiations (mediation being assisted negotiation). Tension between “creating value and distribution of value” (dividing the pie), as he says it’s not about win lose in mediation. Using the old brothers’ arguing over an orange argument as a first example of how to properly engage with clients and what they want not what they or you think they want.


That means doing some disclosure without exploitation, ie cards on the table at the same time wherever possible, that’s why trusting your mediator is necessary to get to know parties and find out what they might be able to disclose.


Second tension empathy vs assertiveness (not sympathy) empathy is walking a mile in the other person’s shows, not agreeing but understanding. Assertiveness is being good at advocacy for yourself, the tension, Robert says, comes form being better at one and not the other. He says that lawyers are often poor at empathy but good at assertiveness, I disagree good lawyers can see both sides of the argument and at court are obliged to do so and help the court see both sides whilst asserting your own client’s view but in mediation the mediator helps the parties articulate their position and help both parties understand where the other is coming from.


Parties who are able to demonstrate understanding of the other really find that this allows the other party to have felt heard and therefore move from the entrenched position to the negotiation (proper).


Robert says the third tension is the tension between the principal and agent. It’s not conflict of interest but there are interests outside of the arguments, lawyers rarely perfectly align with the needs of their client. Lawyers (as Robert says) have an income to earn and a reputation to manage. That’s why I much prefer dealing with the clients direct but I will deal with lawyers but often the problems come about because of their own conflict, it’s nice to hear Robert evoking something which happened between two barristers for two parties not that long ago in a case with which I dealt.


Another tip is to only mediate when it is right to do so. As I said last week there are steps afoot to make mediation if not compulsory then more the rule than the exception.


The proposals include all cases involving children and as you’d expect from this government the encouragement is mainly stick and little carrot. It’s almost like this government has given up caring how it appears and is quite happy to be the one wielding the stick in every circumstance. The thou shalt not attitude isn’t helpful for mediation where really it’s a “thou will be better off”.


The draw back for family mediators is that they become the gatekeepers for court, instead of being those who encourage parties into agreement they act as the bottle neck to help the courts with backlogs. Again that seems to be a misunderstanding of the role and training of mediators, FMC guidelines ensure that where the mediator feels mediation is not suitable it does not proceed, for a parent who hears that they “must” mediate the threats coming from HMG are unhelpful as no parent should be mediating because they feel threatened (it’s one of the reasons to just say no!).


But one circumstance where mediation could have worked but is currently being rejected is by Macron’s government in France. Unions have called for mediation but Macron has said no (those who remember our attempts to join the EC may hear the echoes of past French leaders).

While Macron won’t come to the table he will face continued strikes and protests so one wonders how well this will go for him. In the UK we can only look on askance at the low retirement age (even if Macron gets his own way) and with a certain admiration for those actually taking action rather than just moaning about it on the internet.


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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