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

Commercial Mediation on 0780 288 8418

    Family and Workplace on 0773 098 2140

Email: contact@berkeleysquaremediation.com

In the end people have to talk to solve matters well so why not mediate immediately?

Of course we are hard wired for battle or avoidance, fight or flight, which do you do most in a dispute?  Mediation is the best way of us learning to be hard wired to dialogue it out, to have self-determination and choice and to make sensible and realistic decisions from a place of certainty that you the person carrying the dispute is creating the best outcome in all the circumstances.

The Four Tensions in Mediation

Mediation is the facilitation of negotiation and in order to do it well you need a conceptual understanding of negotiation and the four tensions that need managing:

  1. Its only about the Money and Alternative Solution Creation.

Creating value by expanding the pie, broadening horizons and looking at different ways to distribute the pie by focusing on interests and needs.  What extras do they have to give or ask for?

  1. Empathy and Assertiveness

Help each party to have the capacity to understand the world through the mind of the other party as well as have the capacity to assert what their interests and needs are to help the other side to have the capacity to understand them.  It’s a mix of empathy and assertiveness and beware how competitive people are in being good at asserting and lousy listeners. Keep reminding that the other side’s perspectives have to be taken into account.

  1. The third tension is that of Principals and Agents

Someone who acts on behalf of a party as a negotiator may be difficult to align with their client because they have their own interests and needs, for example Lawyer and Client.  The mediator has to actively manage and ensure they understand each other.

  1. Demands and Requests

The constant flow of people in dispute is the demand that the other side has got to know this or do that or must, have to, ought etc.  Constant reminders that proposals are always requests to which a no can be the answer and that a request will draw them nearer to their goals than any demand.

Dispute resolutions skills are far more important than having the knowledge to judge the matter

There seems to be a huge misunderstanding about the importance of a mediator in not judging the matter and instead relying on what the parties and their lawyers bring to mediation.  The lawyers who come with the parties often have a wealth of knowledge which is invaluable to keep advising their clients and advising the mediator with regard to risks, possibilities, likelihoods and the choices their party (and the other party) have in taking the steps that lead to settlement. What matters is allowing the best solution to arise in the process of mediation, not having a mediator who pushes and pulls it to where the mediator thinks it should go.

Instead of resentment, anger, worry, sleepless nights, annoyance and unresolved thought patterns…

Mediate it which means that you clarify the issues, expand, explore and discover what they mean really to you and to the other side and from those discoveries, find out how to get an end to all those problems the dispute or lack of communication is causing.  If parties have intention to seek settlement and full authority to make their own decisions, it always works.

Recently we resolved a 30 year old dispute relating to property that no one thought would ever settle but us

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

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

Mediation is not alternative, it is mainstream, most used and most effective, cheap and quick

MEDIATION IS NOT ALTERNATIVE – IT IS THE MAINSTREAM SOLUTION

In a report this month, quoting Sarah Gonzales, Assistant Director of Strauss Institute for Dispute Resolution at Pepperdine University School of Law, USA, she said that recent studies of dispute resolutions show that 95% of them are not going to court but settled outside by negotiation, mediation or arbitration.

Not only is it cheaper and quicker than going to court, it is also confidential and a chance for the individuals involved to step up and take control of the dispute they are in to manage it as they feel fit.  Ownership of the dispute remains with them and is not taken over by the lawyers as it would be in court.  They not only get their own say but they also get to decide what happens rather than having a decision imposed upon them.

Mediation is mainstream and not alternative.

Surely mediated agreements of any kind are the way forward in the 21st Century?