Let’s talk mediation…

What is mediation and why does it matter?

Mediation is a form of dispute resolution, many people think it is a mamby-pamby approach with a tree hugging mediator asking you to "get in touch with your feelings" and "see things from the other persons perspective"

Mediation isn't like that at all... think of a mediator as a guidance referee, someone who can help two people reach an outcome they are both happy with, while keeping them focused on moving forward.

Mediation gives you more options than court, allows you to control the outcome and helps you resolve many issues

Landlords and tenants are seeing the benefit of mediation as apposed to going to court.

Mediation can help with Rent arrears, access issues, needing vacant possession and much more.

Mediation agreements are legally binding too, so you can rest assured the outcome you agree is sealed in contract between you both.

So don't think of mediation as a waste of time and money, see it as a cheaper option to getting a mutually beneficial outcome.

What is a mediator?

A mediator supports and guides those involved in a dispute to reach their own resolution. 

The mediator does not decide the outcome, but helps the parties understand and focus on the important issues needed to reach a resolution.

Mediators are skilled at sifting through the facts, emotions and individual interests of those involved to get down to the real core issues and what a fair outcome could be for everyone.

The mediator will clarify the issues, assess the strengths and weaknesses of each party's case. 

The mediator also offers creative approaches and innovative solutions, while maintaining an unbiased perspective.

A mediator's duties are:

• To conduct a mediation in a fair and unbiased manner;;

• To help everyone move forward to resolution

• To maintain the confidentiality of a mediation; and

• To conduct the mediation in accordance with the Code of Mediation Procedure and the provisions of the Standards of Conduct for Mediators.

Mediation… it’s not just for the Family

International mediation awareness week has come to a close, but are you still unsure about mediation and how it could help your current situation.

Many people see mediation as pointless and unenforceable, but what a lot of people don’t realise is there are many types of mediation and just how many industries rely on mediation to resolve disputes, from internal workplace spats, customer complaints, right up to corporate mergers and acquisitions

Here are just some of the types of mediation used regularly and the industries that rely on it.

ADR in the Travel Industry

Armed Forces

Conflict Coaching

Conflict Mapping

Construction industry

Consumer Rights

Education

Energy Sector Issues

Family mediation

Group Facilitation

Health Sector Mediation

High Conflict Behaviour

Inheritance Disputes

Intergenerational Conflict

Landlord and Tenant

Mandatory Mediation

Marketing and Promoting Mediation 

Mediation Advocacy

Mediation in times of Conflict and War

Mental Health

Pets

Professional Services Mediation

Property

Psychology and Mediation

Public Organisations

Restorative Justice

Special Educational Needs and Disabilities

Workplace / employment 

Mediation is designed to prevent the need for court

 I read a very interesting article in The Law Society Gazette, which focused on mediation and the results of the Ministry of Justice (MoJ) recent call for evidence.

The thing that stuck out like a sore thumb to me was ‘high proportion’ of respondents who were not aware of a dispute resolution processes and cited a lack of publicly available information on this.

I have to agree, in my chosen area of mediation, Landlord and tenant, it does still surprise me how many landlords and tenants do not know that mediation is even available in this specific field and how greatly that service can resolve issues such as rent arrears without the cost of going to court.

Mediation was viewed by many as a token step along the inevitable road to court.

Mediation is designed to prevent the need for court and the only people I know that would want to prevent that is solicitors, because with an early resolution, their payday is much less.

Now I do see many solicitors train to be mediators and do the job well, however, I do hear stories from people who have had a solicitor mediate, that the session itself was biased and the solicitor was still looking for a party to win.

Is mediation about winning?

I believe it is, but I see the outcome as Win Win, both the landlord and the tenant get an outcome that they are happy with and 9 times out of 10 it avoids court.

If you ask anyone that has gone through the tireless stages of court proceedings, they will tell you they wish they would have reached a settlement using another method

Is it really neutral?

I would say yes a majority of the time, I certainly find mediators with no legal background make better mediators than those who do, why? Because the law teaches us to see right and wrong and focuses our mind on having a good guy and a bad guy.

Mediation is not about the law, it is about what is best for the 2 people in the room at that moment.

Yes of course the mediator has to make sure that what is being agreed is legal, but at the same time it doesn’t have to follow the letter of the law.

For example, legally the landlord can pursue a tenant to court to recover all rent owed, at mediation, the landlord has the option to reduce the arrears in order to get a swift move out or offer a financial incentive to the tenant. These options are available in court 

I do think mediation has a huge part to play in the private rented sector and I do believe it gets better outcomes than the court process alone.

Personally I would like to see more eviction specialist companies understand the value of mediation for their clients and that an early resolution, may actually see them increase business flow as they do provide the value of alternative dispute resolution.

As a mediator working within the private rented sector I have helped hundreds of landlords and tenants resolve rent arrears, avoid costly and lengthy evictions and help both parties move on from what can be an emotionally draining situation

There are 5 main stages to mediation

Stage 1: Opening Statements 

Each party will be asked to  make an opening statement. This should describe their side of the story.. The key rule during this part of the process is that no one party gets to interrupt any other part.

Stage 2: Joint Discussions

After opening statements are read, each party is asked for their response to the others opening statement

Both parties can asked open-ended questions to build a dialogue about what happened and the issues that must be dealt with to bring a resolution to the situation. 

Personally I do skip this stage, but it can work well for employment or family mediation

Stage 3: Private Discussions

Each party then meets privately with the mediator. Both sides should get their own space at this point, and the mediator will move between the parties to discuss the positions of each side. 

Ask the necessary questions at this point, but also summarize both the strengths and the weaknesses of each side’s position so they understand what’s at stake and how their case looks to an unbiased individual. This is also a great space to develop the ideas necessary to make a settlement work. 

Stage 4: Negotiation

The mediator will know the exact time to start stage 4 and to, bring the two parties to now work towards the agreement.

 The goal here is to present all of the ideas and agree on those that might work. 

The mediator won’t  start this stage until they know  both parties are actually ready to come to an agreement, doing this when the parties aren’t quite ready can lead to losing  everything at this stage. 

Stage 5: Settlement

This is the final step in the process. If you cannot reach a settlement, you’ll simply help both sides decide whether to try again or to take the case to trial. If the parties have reached an agreement, though, the mediator will draw this up in a legally binding mediation agreement, this will be signed by both parties and will have consequences if either party fail to do what they have agreed.

More people stuck to mediation agreements because they have been part of the process to reach an agreement that they were happy with.