It is a common misconception that mediation automatically means you have to compromise or ‘give up’ something.
It is of course an important element of a successful mediation that the parties are prepared to engage in some ‘give and take’, but this does not necessarily mean you have to abandon what you consider you are entitled to.
I recently settled a bitter and long running dispute over a family business which demonstrates this.
Each party’s lawyers had tried to work with each other for 9 years to unravel what shares family members would get after a brother died. Sadly, the animosity between the remaining family members and range of issues was so high that they were unable to resolve the issues and High Court Proceedings were issued.
Sensibly, the lawyers arranged mediation and I was able to meet with all the parties individually and create a checklist of each party’s complaints and priorities.
Over the course of a day we were able to gradually agree each point of dispute and eventually an agreement was reached that essentially saw everyone get what they wanted.
It was clear that for the 9 years of dispute there was such ill feeling and strong emotion that they had struggled to see the wood for the trees. At mediation I enabled them to concentrate on solutions rather than problems and the assets and shares were distributed in a way that all were happy with. This saved High Court proceedings that could have seen costs exceed 6 figures.
Comments Off on Even if you don’t settle on the day, mediation always brings parties closer to a final outcome.
Not settling on the day is not necessarily the end of the world
Sometimes mediation does not result in a settlement on the day. There may be a particularly difficult issue that the parties fail to overcome. Or, one party may make an offer or a statement to which the other takes objection. This does not necessarily mean that the process has been futile, particularly if, during the mediation, some elements of the dispute have been resolved.
One case I dealt with, related to a dispute between a supplier of point of service (POS) equipment and one of its customers. The customer alleged that equipment it had been supplied with was not fit for purpose and claimed a refund. Court proceedings were issued against the supplier.
In the customer’s claim form, it had been alleged that a handheld piece of equipment should be returned and a refund provided for that as well.
At the mediation, the supplier made an offer to pay money to the customer, in order to settle the case. That offer was rejected and a counter-offer was tabled by the customer. The supplier found the counter-offer to be out of the ‘ball park’ and, from that point, it gradually became clear that a settlement would not be achievable there and then.
However, before both parties departed our premises, a joint session was held between them, during which, they took turns to talk about their positions and what they felt a reasonable settlement should look like.
It was also tacitly accepted that the customer’s claim, regarding the handheld unit, could be resolved by replacement equipment being provided.
Although there was no settlement, clearly, the mediation had led to the parties narrowing down their issues and points of focus. Indeed, within the next week, the parties’ lawyers were able to agree a deal, which involved the customer receiving a sum of money, as a partial refund. I am convinced that the case would have lasted longer, resulting in further expense to both parties, if the mediation had not taken place at all.
Comments Off on How the Courts are, in practice, actively pushing mediation.
I was instructed on a case centring on a dispute between neighbours. There were all sorts of complex and involved legal issues at stake, including ownership of parcels of land, rights of way and restrictions on how the parties might use their properties in the future. Court proceedings were commenced after a few months of initial wrangling between the parties’ legal representatives.
Rarely have I encountered a dispute where the claimants and the defendants were so entrenched in their positions.
Neither seemed to wish to give very much – if any – ground to the other.
The case was, nevertheless, mediated, not long after the litigation commenced. However, despite two to three hours of discussions and individual, private meetings between the parties and the mediator, it became evident that neither the claimants nor the defendants were able to convince the other of agreeing to their respective settlement proposals.
The case went to trial. Given its complex nature, it was scheduled to last for an entire week.
However, on the very first day of the hearing and, due to the huge costs at stake, the Judge was extremely quick to encourage the parties and their lawyers to spend some time – indeed, as much as they needed – to reconsider settling the matter.
Being an accredited mediator himself, the Judge reminded the parties that, if they could find a way of bridging their differences, this would leave them in control of the settlement terms.
There might be certain agreements/understandings, he said, that they could include in the settlement, which he would be powerless to make (e.g. the precise materials to be used in any necessary repair works).
Settlement discussions began to gather momentum on Day 2. They lasted the whole day and into the late evening. In that time, the Judge had given the parties every encouragement to keep the talks going. Finally, settlement terms were agreed, with repair works, rights of way and land ownership all being covered in a single, written agreement signed by the parties.
The case illustrates the lengths, to which, the Courts now seem to be willing to go, in order to avoid having to determine cases on the parties’ behalf.
I think we will see more and more Judges dealing with cases in the same way, even in the later stages, including at trial.
However, parties should always avoid leaving settlement discussions until the last minute (and a good Litigation lawyer will routinely remind them of this), otherwise, regardless of the final outcome of the case, they risk leaving themselves potentially exposed to picking up not only their legal bill but their opponent’s as well.
Related article: How mediation offers more creative remedies than those offered by the legal process.
“Let me start by saying that this dispute was complex. It involved 3 parties, instead of the typical 2. There were multiple grounds for dispute and each party required their own language interpreter.” Read on >
Comments Off on How Ian and Sally used family mediation to avoid the Courts
Ian (32) was married to Sally (28) and they had two children Gemma (3) and David (8 Months). The couple have been married four years and separated when Ian left to live with his girlfriend and her one year old child. Sally was extremely upset by the failure of the marriage and as she saw it as a direct result of Ian’s adultery.
There had been contact between Ian and the children, but Sally had refused to allow the children to come into contact with Ian’s girlfriend.
Ian had no family locally and therefore no plans to take the children other than staying in the former matrimonial home or using local cafes and occasionally the swimming pool (although this was difficult with two children). Ian had already instructed solicitors who were threatening court proceedings. Sally took legal advice and mediation was suggested. Using the mediation express service an appointment for explanation of mediation was made almost immediately and thereafter a first session of mediation arranged within seven days.
Both Ian and Sally aided by the mediator explored a variety of options
to enable a regular contact pattern to be formulated and trialed.
At the second session some six weeks later both Ian and Sally where able to discuss the successful parts of the contact arrangements and try and get to grips with the remaining and difficult issues. A planned introduction of Ian’s girlfriend to the children was managed. By the third session of mediation a measure of certainty in relation to the contact arrangements had been achieved.
Both Ian and Sally were able to confirm to their individual solicitors that court proceedings were unnecessary and that they were able in the main to now sort out any contact issues between themselves having learnt strategies and methods of coping and negotiating whilst in mediation.
John and Fiona, separated after a 5 year relationship. They were not married and had one child Amy who was 2. The real issue was that Fiona had formed what she saw as a permanent relationship with a new partner who was Australian and wished to locate to Australia taking Amy with her. To read their story visit: http://www.leonardgraymediation.co.uk/relationship-breakup/case-studies/
Comments Off on How we use mediation to resolve even the most entrenched disputes
I recently dealt with a highly involved and complex inheritance dispute between family members. The appointment had been made on the recommendation of a solicitor acting for one of the parties, and was booked as a three-hour mediation under our fixed fee scheme.
It was fairly clear, from the outset, that relations and communications between the parties had broken down considerably.
They were quite well entrenched in a conflict that had, in a variety of ways, deeply affected them all.
I must confess, on a first glance of the background paperwork, my thoughts were not filled with expectations of a swift and straightforward settlement. There were many layers of emotional and practical issues that needed first to be carefully and sensitively peeled away.
It was clear that bringing the parties together into the same room would disrupt the mediation process, perhaps irretrievably.
Throughout the mediation I held various, private meetings with both parties and their solicitors, keeping what they told me in the strictest confidence, except where I was given authority to pass information on to the other.
In the early stages of the process, I needed to listen very carefully to and gain a quick understanding of not just the parties’ legal issues but, far more importantly, their wider interests and why it was so important for them to resolve their dispute on the day. I reminded them that their first step on the road to resolving their dispute was simply to attend the mediation, which was a meaningful and positive development in the overall case.
At one stage during the afternoon, both parties indicated they had made their best offers and, in what was developing into a stalemate, discussions risked ceasing altogether.
The parties had, however, made good and steady progress throughout the session, up until that point. With encouragement and reassurance from me, they kept going. Ultimately, with effort and co-operation from the parties and their lawyers, I helped settle the case.
At the end of the appointment, I was congratulated by both parties for my tenacity and energy throughout the process and this was reflected in feedback we subsequently received, where we were rated 10 out of 10 for the following:
Preparation by the mediator
Punctuality of the mediator
Availability of the mediator for discussion
Ease of booking and administration
Value for money
The above appointment illustrated two things that make Leonard Gray one of the best places to come for an effective and well handled mediation.
Firstly, our facilities are first rate. Our mediation suite is set up in such a way that enables the parties to remain physically separate during any part or, if necessary, throughout the entire process. We have meeting rooms on separate floors of our building, giving the parties the comfort and privacy they need.
Secondly, the importance of the mediator gaining the trust and confidence of the parties, at the earliest possible stage in the process, is absolutely paramount. If the mediator fails, in this respect, the entire procedure can very quickly be undermined.
It may sound slightly clichéd, but mediation (or, more to the point, the appointment of a good mediator) is, it seems to me, capable of helping resolve any conflict, no matter how disparate the parties’ positions may initially seem.”
Comments Off on Where do you turn if you simply can’t afford the legal fees?
In a recent BBC Essex radio interview, Leonard Gray and the Chelmsford CAB (Citizens Advice Bureau) addressed the issue of where to turn if you’ve got a problem that needs to be sorted out in court or by a solicitor but you simply can’t afford the legal fees.
Back in April 2013, the Government cut legal aid for large areas of civil law
John Appleby of Leonard Gray started the interview aired on BBC Essex, by giving an insight in to the impact of this change. “It’s certainly the case that the courts are becoming a lot busier with people who are struggling to deal with these cases themselves, without a solicitor as an advocate or indeed as an emotional buffer, this is causing a problem.”
To compound this problem, the small claims limit has been raised from £5,000 to £10,000
New rules raising the threshold to £10,000 for small claims cases mean that the winning party is rarely able to recover their legal costs. “It’s very easy to see, therefore, how someone with a claim of, let’s say £8000 but with a legal bill of £4000-5000 soon creates a false economy,” adds John Appleby.
Moves are afoot to help people who simply can’t afford a solicitor
Russ Mynott, the Chief Executive of the Chelmsford CAB is leading a new scheme to provide a single point of access for legal advice, with affordable options to suit all budgets.
They have been awarded £350,000 to support the formation of a partnership across Chelmsford consisting of the CAB, Age UK, Essex Coalition of Disabled People (ECDP) and the YMCA.
This partnership will be supported by private solicitor firms including Leonard Gray.
The CAB will assess each case on ‘ability to pay’
Russ Mynott added, “We will look at clients coming in to us but also to the private sector, reviewing their ability to pay, their disposable income. We will refer people on who can afford full law but also intend for private practice firms like Leonard Gray to refer down to us the one’s who can’t afford. The CAB is working with solicitors who are taking a career break for instance who want to maintain their practice certificate and they are coming in working for us to pick up the cases where people can’t afford to pay or can’t afford the full rates of a private solicitor.”
Leonard Gray has devised a range of affordable legal solutions
“We’re very excited to be one of the CAB’s leading partners in this initiative. We’ve recognised that people need legal advice to be more affordable, and available with more options to suit them,” adds John Appleby of Leonard Gray. “We’ve been building a new range of services with very clear pricing, with a number of these options available from today including fixed fee divorce services.”
There is another simple way to cut legal costs
Mediation offers a quicker, cheaper way of resolving disputes than going to court. Whilst Leonard Gray’s team of mediators has been achieving great results for over 15 years – it is only now becoming a popular alternative to traditional legal services.
For disputes around employment, unpaid invoices, building work etc, we achieve successful resolution in less than a day for 90% of cases, with fixed fees starting at just £400 per party.
For family law, mediation is conducted over a series of sessions. The mediator helps you to reach agreed solutions about finances and children, which are then formalised afterwards in a court order.
Mediation is a way of solving disagreements without involving the courts in expensive legal proceedings if your relationship has gone wrong. In many cases, mediation is a better way of sorting out family disputes than going to court.
Comments Off on Richard Randall speaks to Chelmsford Weekly News about legal aid change
The Chelmsford Weekly News published an article this week titled “Solicitor wants rethink over legal aid change” in which Richard Randall of Leonard Gray urged the Government to rethink changes to legal aid for families and divorcing couples.
The article explained that as part of the restructure which took hold on April 1, only those who have been affected by domestic violence or forced marriage will be eligible for legal aid.
However Mr. Randall feels the new system could cause more heartache for couples seeking a divorce. He said “There will be more unhappy couples in abusive relationships forced to stay together and more deserted mothers and fathers denied contact to their children. What needs to happen is the Government needs to put more real money into legal aid for mediation, rather than making eligibility even tighter.”
There are quicker, cheaper and less stressful options available
Lord McNally. The Justice Minister said “At £2billion a year we have one of the most expensive legal aid systems in the world, and it’s now costing taxpayers too much at a time when resources are not limitless. We must make sure taxpayers’ money is not spent resolving too many disputes in court, when there are quicker, cheaper and less stressful options available, like mediation which we know often works well in divorce cases.”
What is mediation?
Mediation helps you to reach agreed solutions for you and your family, rather than imposed Court decisions.
Instead of negotiating with your partner at arm’s length through your own separate solicitors, or battling it out through the courts, you and your partner work together with the help of a trained family mediator to resolve the issues yourselves.
You retain control at all times. Most people prefer to reach their own agreements than have these imposed upon them by a third party such as a Judge.
If you’re new to mediation…
Try our FAQs and our Case examples. These are very popular areas of our web site and offer answers to all the questions we’re asked by our clients.
Alternatively, you’re very welcome to have an informal discussion with Jo or Sharon on 01245 264764.
Comments Off on Changes in Small Claims rules make it riskier to resolve disputes via the legal system
From 1st April 2013, small claims cases under £10,000 will now be required to fund their own legal costs even if they win.
These new rules mean the winning party is rarely able to recover their legal costs.
This change will effect many people seeking recourse over debts, unpaid invoices or services not delivered as agreed.
The Government decided to increase the general small claims limit, initially to £10,000 with the aim to further increase it to £15,000 in the future after full evaluation of the increase to £10,000. This change came in to effect on 1st April 2013.
The reality of this change is that some people may not be able to afford the cost of court proceedings in the future.
Mediation is increasingly being suggested as the only affordable alternative.
It is a way of solving disagreements without involving the courts in expensive negotiations. An independent third party (the mediator) helps to find options and reach proposals to resolve disputes before they escalate. It is quicker and cheaper than going to court.
Leonard Gray is the only local law firm with a long established Mediation practice.
Our civil and commercial mediations have a 90%+ success rate, most settling in less than one day.
Within the Small Claims, Employment, and Disputes section of this website you can find helpful case examples showing how previous cases have settled quickly and successfully using mediation – many in just one 3-hour session.
Comments Off on Press Release: No more legal aid for those separating, divorcing, or for parents with disputes over their children.
This is going to cause extreme difficulty for many, particularly mothers struggling to know what to do when there is a family split, particularly, where for example, the husband is in well paid employment but has left the wife with young children. She may well be on housing benefit whilst he may have a six figure salary and all sorts of other complicated assets.
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