http://berkeley.surreyhillspc.co.uk/wp-login

Commercial Mediation on 0780 288 8418

    Family and Workplace on 0773 098 2140

Email: contact@berkeleysquaremediation.com

How to choose the outcome that works?

It is sometimes very difficult for a party to make a decision about what to do in mediation and then stick to it.  In the field of Behavioural Economics it is suggested there are two types of decision making.  Type 1 is made of a hunch, guess, gut feeling or a sense of just knowing while Type 2 is made by analysis, looking at numbers, probabilities, strengths and weaknesses, different outcomes and the effect they may have, pulling everything apart and putting it back together.  We believe that working hard on Type 2 in mediation facilitates parties to come to a Type 1 decision based on the reality of their position and the position of the other, as in the light of the changes that happen in mediation they find themselves able to choose an outcome that works.  It is still a difficult decision and in the cold light of the next few days or weeks, a party may have doubt as to why they made that choice and need to remind themselves of what was said and done and talked through before they decided what the outcome would be. Legal rights change once a Settlement Agreement is drawn up, checked and signed by both parties to form a new contract.

The importance of costs sanctions

Mediation can avoid costly longwinded litigation which is emotionally, physically and personally demanding of the parties.  Who would choose sleepless nights and uncertainty over actively taking control of the dispute in mediation and working at it to find a doable and workable solution?  A party who chooses the outcome as is the case in mediation can come out financially better off and infused with grace, self-respect and integrity.  Mediation is cheap, quick and efficient as well as creating closure so parties can get on with better things.

However, without the courts supporting that choice by making effective costs sanctions against those who choose not to be willing to mediate, the courts will be over worked and running up exorbitant legal fees for parties before even reaching trial.

Conflict is a positive gift to be embraced

Conflict can be seen as a gift of energy, in which neither side loses and a new dance is created – – – Thomas Crum

Approaching conflict from a different perspective can make a huge difference to how it becomes settled in mediation.

What you are really looking for also wishes to be found?

What I want also wants me

When I run after what I think I want,
my days are a furnace of stress and anxiety;
if I sit in my own place of patience,
what I need flows to me, and without pain.
From this I understand that
what I want also wants me,
is looking for me and attracting me.
There is a great secret here
for anyone who can grasp it.

~ Shams Tabrizi

Gambling businesses like any other business are required to offer alternative forms of dispute resolution like mediation

Businesses need to make ADR available for quick, cheap and effective dispute resolution.  It is to the advantage of all involved to ensure a dispute is dealt with well in a timely fashion so it does not fester and interfere with progress and production.

See this helpful guide:  https://www.businesscompanion.info/en/quick-guides/business-information-other/alternative-dispute-resolution

Beware of costs consequences in losing your rag in neighbour disputes – mediate instead?

Mr Justice Warby said in a case just before Christmas called Barkhuysen v Hamilton said:

‘But if a litigant chooses to litigate mendaciously and, despite the court’s every effort, in a disproportionate way, and if she thereby causes considerable additional costs, the litigant is in a poor position to cavil when confronted with the costs consequences.’

The difference between compassion and empathy and the importance of boundaries

Have a watch of this:

Brené Brown on empathy, compassion and boundaries…

Posted by The Work of the People on Saturday, 5 March 2016

What is so good about mediation?

It is a little like what Benjamin Franklin said:

“Tell me and I forget, teach me and I may remember, involve me and I learn”.

If you tell parties what to do or what you think they should do they will probably forget any benefit and remain annoyed about the dispute, possibly for years.

If you try to teach them how to problem solve without mediating they may remember some of it and gain benefit.

If you involve them, such as when the mediator has them doing all the work of talking, engaging, discussion, dialogue, exploration, explanation, uncovering, digging, delving, discovering, noticing, hearing, drilling down, finding a way and solving etc., they will learn that this is the best solution they can do and how to live with it, move on from it and prosper because of it.

Before you think of court proceedings

Consider mediation because before you go to court you are meant to follow the general or specific pre-action protocol that applies to your type of case and as you can see below in paragraph 3. (d) you must consider a form of ADR to assist with settlement.

The specific protocols are set out in Paragraph 18 so for all other types of case Paragraph 3 below applies.

PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS

  1. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR). (The current pre-action protocols are listed in paragraph 18.)
  2. This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.

 

Objectives of pre-action conduct and protocols

  1. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

    (a) understand each other’s position;

(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.

 

  1. Specific Pre-Action Protocols exist for the following:
Protocol Came into force
Personal Injury 6 April 2015
Resolution of Clinical Disputes 6 April 2015
Construction and Engineering 02 October 2000
Defamation 02 October 2000
Professional Negligence 16 July 2000
Judicial Review 6 April 2015
Disease and Illness 8 December 2003
Housing Disrepair 6 April 2015
Possession Claims by Social Landlords 6 April 2015
Possession Claims for Mortgage Arrears 6 April 2015
Dilapidation of Commercial Property 1 January 2012
Low Value Personal Injury Road Traffic Accident Claims 30 April 2010 extended from 31 July 2013
Low Value Personal Injury Employers’ and Public Liability Claims 31 July 2013

Congratulations to Eileen Pereira on becoming the new Chief Executive of the Civil Mediation Council

Eileen Pereira has been appointed the new Chief Executive of the CMC.  She comes from a Family Mediation background and hopefully we may draw together Family, Workplace, Commercial and Community, Inter-faith and Trans-gender as well as all types of mediation so that Professional Mediators can be part of one professional body, which we believe is a dream of Sir Alan Ward, the Chair of the CMC.