It’s mediation awareness week and whilst I applaud the intent, I harbour doubts about the effectiveness, outside of our own industry and anywhere north of London you’ll struggle to know that this week occurs.
All the events are London-centric, something which the CMC has bemoaned previously (just before having all conferences in London) and the list of all the events on the MAG website doesn’t help dispel the feeling that it’s an elite group.
For the record we, mediators, are not elitist we’re not all based in London and not all lawyers just sticking on an extra title for the CV, we are skilled professionals from all walks of life who bring intellect, reasoning and curiosity into the varied disputes faced by individuals and businesses to help you find your resolution.
As for news which makes people aware of mediation goes the Gazette has a good article this week, it highlights the court’s attitude to those who have ADR clauses in tehir contracts but detract from them.
You may recall last week we discussed the approach of the Californian courts, this week Mrs Justice O’Farrell gave judgment in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd  EWHC 2246 (TCC) saying of such clauses:-
"Where a contract contains valid machinery for resolving potential disputes between the parties, it will usually be necessary for the parties to follow that machinery, and the court will not permit an action to be brought in breach of such agreement."
In Ohpen the dispute resolution (or DR) clause stated that there were several steps to be taken before either party could commence proceedings against the other.
Firstly they should use reasonable efforts through ordinary negotiations referred if necessary to managers, then executive committees and then to the CEDR for mediation (the CEDR is like the CMC but with a better press team), only after all those steps could proceedings be commenced.
Justice O’Farrell felt that whilst the first steps of escalating the dispute up the ranks in the businesses had been followed by not referring to mediation the proceedings were premature. She therefore stayed the proceedings for mediation.
By contrast in Hawaii a contrary decision was made in Hans Franke et al. v. Julia Yates, et al., 2019 WL 4856002 (D. Haw. Oct. 1, 2019).
Here the judge felt that the terms within that contract requiring mediation as a pre-requisite to issue proceedings were not concrete enough to make the engagement in mediation a specific requirement.
The words “to attempt in good faith to settle such dispute or claim by non-binding mediation” were insufficient to make mediation a “condition precedent” as the clause did not make clear that it was a step specifically before litigation.
But, the England and Wales court’s don’t need to have regard to the contractual terms of any dispute they can (and should) refer case to mediation where ever possible the practice direction on pre-action protocols and conduct confirms (section 8) “litigation should be a last resort” not the first knee jerk reaction.
But what should parties do before issuing? Helpfully section 10 says
“Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes.”
It’s not difficult to find a mediator, it is cheaper, it will invariably be quicker which means less loss of your time and less stress for you.
Is that enough proselytising for the week?
OK back to the normal news desk.
We had platinum mines going to mediation the week before last now we’re back to mining but this time copper is the metal of choice and Chile the destination.
Antofagasta PLC a copper mining company has requested the government provide a mediation service to deal with the ongoing dispute with mine supervisors over pay and conditions.
An earlier offer of salary “adjustment” was rejected by worked at the mining giant and a vote to strike was passed.
The issue arises as the company want miners underground 24/7 but the workers say that suitable payments for overtime have not been forthcoming.
Head of the union Felipe Franco said “This is not going to give us flexibility. If you want to have people working 24/7, you have to pay overtime accordingly,”
The union is also pushing for a pay recognition to reflect output.
Meanwhile in Canada (and I don’t often get chance to use the word Sakatchewan) a Member of the Legislative Assembly, Nadine Wilson, who is facing charges relating to assault on her step-mother in a disagreement about her father’s care has had her case sent to mediation. In this instance mediation could avoid a criminal record but the start has been delayed due to a diary management issue (equivalent excuse code to “the dog ate my homework”).
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.
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 (and some lawyers) 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 the Northwest of the UK or 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 email@example.com
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