Tag Archives: Workplace

Today’s Challenge: Describe the Benefits of Mediation and What it Does in Two Sentences?

On 22nd May about 150 mediators, judges of various flavours, policy makers and politicians, assembled at The Met in Leeds for the annual Civil Mediation Council (CMC) conference. (We will get to the challenge in a minute). The glitterati of the mediation profession were there, along with those members of the judiciary sympathetic to mediation as a means to resolve disputes. The message from On High was clear, the courts need more cases to settle and avoid trial, as the present demand for adjudication cannot be met, there are not enough courts or judges and there’s certainly not enough money.

Mediation is the most probable alternative to court. It saves time, money and stress, so why don’t people try to mediate before issuing court proceedings? There were many theories, but the most persuasive was that many people want to go to court because they believe the judge will agree with them, they will be vindicated, the ‘other side’ will lose, suffer and be humiliated. They will get what they want. Of course, they probably won’t get what they want, both sides feel the same and can’t both be right.  Also, the costs frequently exceed the value of the dispute by a considerable margin, so it ends up as a poor investment.  Though it’s questionable if applying to court can ever be regarded as an investment; an expensive gamble might be a more accurate description.

Most people wish they’d never started court proceedings long before they end, when everyone is just desperate for it to be over. By then if not before, mediation is usually the best way out and of course, we all know that very few cases go to full trial, so the revenge/ vindication sought is a satisfaction rarely achieved.

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We heard from Lord Faulks the government is committed to mediation and wishes to extend its use in the resolution of disputes.  Lord Justice Briggs said the same thing. Then we established that the Jackson reforms last year have not, in fact, increased the take up of mediation as much as expected, despite government policy and reform and the unarguable fact that many cases at court are simply in the wrong forum for sorting them out. People need help with resolution not help with fighting, however angry they feel – it is counter-intuitive. There were workshops examining online mediation, compulsory mediation, mediation in schools, mediation in the political process and ACAS. The constellation of experts assembled was inspiring.

Joshua Rosenberg (BBC legal commentator and expert) helpfully described what mediators should do to increase public awareness of mediation. He had done the training, saw what it could achieve and was all for it – but people don’t know what it can do for them or how it works. He thinks we need a two sentence description of the benefits of mediation and what it can do. Then people may better understand and try mediation, instead of litigating first and regretting it later. So – the challenge is to find two sentences describing mediation in such a way that ordinary people will know what it means. There follow some examples:-

  • Mediation reaches the parts of the dispute that court doesn’t and gives people more choices about their way forward that the Law. Mediation is fast, affordable and starts where you are to sort out disputes in ways acceptable to both of you, so you can move on
  • If you are in dispute resist the temptation to invest your time and money arguing why you are right and fighting, as in the end most people do a deal and the sooner the better.  By mediating first you can save the most time, money and stress. So start by seeing what you can agree in mediation rather than start with an expensive legal ritual that drives you poles apart.
  • When in dispute, think carefully about what you want to achieve. Grind your opponent into the ground? Hurt them like they hurt you? Or sort it out and move on with your life? Mediation lets you end it swiftly and cost effectively. The price of justice is an uncertain outcome at vast expense and with huge delays, the benefits of mediation are fast, affordable certainty and it’s over.  No brainer.

The problem is, these definitions come from a mediator – we thought it would be better if a non mediator writes  the 2 sentences. So, here’s the challenge – £100 voucher for the shop of your choice to the person who comes up with the best two sentence description of mediation. Closing date – 31st August 2014.

Fighting Over Nothing

When is disagreement about something and when is it about nothing?

Perhaps it may help to rephrase that… Often conflict causes disagreements about not very much or even nothing at all! The problem is the conflict, not the issue.  We see this all the time in mediation. It’s why mediation is so much better at resolving disputes than litigation. The legal system can only deal with the legal basis of disagreements, even if there isn’t really a legal basis, it cannot help with the non legal conflict drivers, even when that is the problem that needs sorting out.

Let’s look at a typical example. Two children are deeply jealous of their mother’s attention for the other child.  They grow up and courteously dislike each other. They always compete for parental time and attention and resent the time the mother spends with their sibling. If challenged they would deny this, but the conflict is deeply embedded in their sub conscious minds, it will never go away and informs all their exchanges in relation to their mother. That mother becomes ill and develops Dementia. One of them starts to look after her. The other has difficulty seeing the mother and is sometimes denied access. There are huge control issues and a legal dispute may well emerge. On the face of it that dispute will be about the Power of Attorney, who controls the mother’s money or makes decisions about her health and welfare. There may be a dispute about her jewellery all the terms of her Will, whether she had capacity to make the Will or Power of Attorney, particularly if it favours one sibling over the other. Was it fair, was it right or was undue influence brought to bear on the elderly parent?

In reality, assessing the capacity of someone with dementia is notoriously difficult, as it comes and goes. So legal proceedings on this can be fraught with difficulty and be a bit of a gamble. Also, the dispute originates in the sibling relationship and entrenched conflict. The legal dispute is an expression of that. Hence settling that litigation will be really hard, because it isn’t just about the legal rights and wrongs. Costs will mount and relationships worsen and all the time the cure would be mediation. Mediation is the medicine that reaches the parts litigation can’t reach. Mediation deals with the root cause, not the symptoms. Litigation in cases like this is akin to amputation for an infection. Treat the infection and you may well preserve something precious and save great suffering and stress. Litigate and the losses can be incalculable. It certainly rarely improves the situation!

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It’s the same in the workplace, in the work team. If people can’t get along they quarrel and precious work time and energy is wasted in their conflict.  If the the conflict is bad enough then stalemate can result, paralysing your business. Yet the reason you may have recruited two very different people and asked them to work together may be good.  They may have a complimentary skills and you want to stop the conflict between them and harness their different skills to produce useful outcomes for your business. The legal remedy is disciplinary or grievance procedures and finally termination or redundancy. This is an incredibly expensive gamble and diverts you and your team from what you want to be doing – running the business. A workplace mediator can often help teams work together, solving your problem so amputation isn’t necessary.

So when you seem to have an intractable problem between people, ask yourself is it ‘them’ or the presenting issue? If you solve this issue, will there always be something else? Might a chat with a mediator be the most use to you?
You have nothing to lose and quite a lot to gain.

Mediation and the Law – a big change is happening

When businesses and families have serious rows everything can seem insoluble and legal action may follow.  However, emotions and old grudges may cause a dispute that has nothing to do with the apparent “legal problem” everyone thinks they are arguing about. For example, I mediated a dispute between a spouse and the siblings of an elderly patient with dementia, about who should spend what time with the patient and control his care and welfare decisions. The spouse was distraught and felt threatened at the demands of the sibling group, who had little trust in her.  This was resolved in one day after nearly a year’s legal wrangling, court proceedings and after legal costs of over £30,000 had been spent.  This was not about legal niceties – there was no dispute about money or the law.  It was about grief, loss and the human tendency to displace impossible grief into something controllable, like a big row over something.

The only option for lawyers is to sift the evidence and translate it into a legal narrative – that is their role.  The difficult relationship between people, their struggle with each other, their relationships – that is often the real problem.  A trial or solicitors’ letters can be like amputating a leg, because someone has an infection. It’s as much use.

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So imagine a huge row – about a will, a sick relative, a business – or a commercial dispute between people who work together, or about a contract – wherever there are people – there will be disagreements.  It is human nature.  Each participant comes at it with their own interpretation of the “truth” with their own beliefs, which tend to be re-enforced through debate, as people don’t want to back down. The conventional, legal ritual inflames the conflict drivers of the dispute, so it escalates.  The Law concerns itself with the evidence and legal issues – but those are often not what matters to people. Mediation reaches the conflict drivers, the beliefs and misunderstandings that fuel disputes. Mediation is far more likely to resolve the argument, as it deals with a far wider range of issues than the law can.

Given the success of mediation at sorting out disputes, it is a wonder it isn’t a first choice for anyone with a possible court application, but it hasn’t been so far. This is because the allure of court is that the judge will agree with you and the other person will be found to be “wrong” or “at fault” People want to be found to be “right”, it is much more appealing than a settlement. The problem is, usually both parties think they are right and the law of averages says half must be wrong!

The court costs are huge, they frequently dwarf the financial value of the issue being mediated – then everyone loses out.  The court timescale is long, but by the time the proceedings are under way, it can feel there’s no way out. However, since April the courts are increasingly directing people to mediation. The tide is turning in favour of fast and affordable, non-adjudicated resolution in mediation for all disputes, whether commercial or family. Our experienced specialist mediation team are proud to be mediation experts.

Business Disputes

Business Disputes

Disputes can paralyse a department or even the whole company, diverting decision-makers from the key tasks of doing deals, creating wealth. The cost in money and reputation can be incalculable.  A Focus Mediator can help restore equilibrium swiftly, confidentially and with the minimum of expense and disruption.  The key aim is to end the haemorrhaging of time and money as quickly and productively as possible.

Focus Gets Results

Mediation usually only takes a single day, and can be set up at short notice.  Where relationships have broken down and negotiations failed, a neutral mediator operating in a private, “without prejudice” environment aims to broker a deal that all parties agree is better for them than the fight.  Focus mediators achieve that in over 90% of cases, with parties signing binding settlement terms there and then.  The process even brings many of the rest close enough that they settle soon after.

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Business Disputes and Litigation

Disputes often grow in complexity as the lawyers jockey for tactical advantage, and extra parties (such as insurers) may become involved.  Before you know it the legal costs can be one of the biggest issues!  Mediators start where you are. Only a mediator can discuss each party’s hopes, fears and objectives with them in confidence.  No judge, arbitrator, adjudicator or party representative can ever do that.  It’s one of the main reasons mediation gets results. And mediated solutions can be more creative and user friendly than awards imposed by the courts, arbitrators or tribunals.

Problems, Problems

Traditional methods of resolving disputes often drive parties further apart long before any resolution is possible.  If you’ve been through the stage of snarling at each other, and that didn’t bring the opposition to heel, where should you go next?  Since April 2013 litigation procedures have been reformed to encourage and incentivise parties to use ADR (Alternative Dispute Resolution) including mediation. Failure to do so can have adverse costs consequences, even for parties who go on to win their case.  Proposing mediation, far from being a sign of weakness, can put your opponent on the back foot.

How does a business mediation work?

We will help you choose the right mediator from our panel and a day is set aside for the mediation. A fixed fee is paid up front, usually by the parties equally. Pre-session process is kept to a minimum – usually just a short position statement from each party, to ensure the mediator understands the background.  The mediation day usually starts with an opportunity to explain your case in a group session, all together. Most of the day is spent in separate rooms with the mediator shuttling between you. You say what you want relayed, and what is to be held confidentially by the mediator. This process helps the mediator see areas where agreement may become possible.  The objective is a binding settlement, signed on the day.

Usually your mediation can be held within two weeks of your contacting us

Workplace Mediation

Conflict at work is inevitable in a thriving innovative environment. For example, competition between teams or individuals may bring out the best in people, particularly if there is a prize or reward for the most successful. A state of ‘Healthy’ competition is good for the workplace and has a number of benefits such as, attracting the best candidates for advertised roles, retention of staff and increased productivity.

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Conversely, conflict that develops into something ‘personal’ between two or more persons may have a disproportionate affect on the way others perform their roles. Unresolved conflict may lead to a decrease in productivity, difficulties in recruiting the right staff and increased absenteeism through sickness, particularly stress related conditions.

People may react to workplace conflict in a number of ways.

Fight – we’ve probably all seen a verbal argument at work, sometimes it provides the cure to the dispute, or it may lead to more deeply entrenched positions with other workers being expected to ‘take sides’ and demonstrate allegiance by a lack of co-operation or communication with the ‘other side’.

Flight – some individuals will turn their back on what’s going on in the hope that the problem will just go away.

Freeze – someone unsure as to how they should deal with the situation may become passive, efforts to deal with the situation may be ‘half hearted’ through a lack of conviction or confidence and the issue never gets resolved.
Workplace conflict can be resolved by;

Having a quiet word, an informal approach can often solve the problem; it may be that the persons concerned were unaware of the impact of their behaviour on the rest of the workforce.

Informal investigation, speaking to those involved in or affected by the dispute, and taking appropriate action may provide a solution.

Internal processes, grievance procedures or a formal investigation may be necessary; the downside of formal procedures is that there is often somebody found to be at fault. This process creates a winner and loser and may lead to resentment, withdrawal or further attempts to get back at the organisation or another individual involved.

Training for line managers around topics such as, ‘Managing difficult conversations’ could lead to conflict being identified, and dealt with, at an early stage rather than when positions have become entrenched.

Focus Mediator – An accredited impartial mediator facilitates communication between people in dispute to improve their future working relationship and restore their productivity.  Workplace mediators accept that personal differences may continue, but the mediator helps the parties to find their own solution to their dispute or problem, so that they can work together effectively.

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