Hesketh Mediation Services » alternative dispute resolution

What cases are suitable for mediation?

Philip Hesketh — Thu, 12 Nov 2009 07:30:05 +0000

Almost any type of dispute is suitable for mediation but not each case is suitable. Cases I have mediated include personal injury, commercial contracts, probate disputes, neighbour boundary disputes and employment claims amongst others. I do not offer mediation services for family disputes – you might want to visit the National Family Mediation Service charity for help with that type of work. Is it the right time to mediate your case?

Cases unsuitable for mediation include:

Where one side wants a precedent ruling on an issue – perhaps a term in a contract.
Both parties are unwilling to mediate.
Only a court ruling can resolve the issue.
A public ruling is required.
There are very significant power imbalances between the parties.

If you are uncertain whether or not your case is suitable for mediation call a mediator and ask them for an opinion.

NYPD complaints mediation solution

Philip Hesketh — Thu, 17 Sep 2009 14:22:30 +0000

Thanks to Jeff Thompson for highlighting this press release on the NYPD website – Police Officers Encouraged to use Mediation for Resolving Civilian Complaints.

New York police have been running a scheme for the past couple of years encouraging the use of mediation to resolve complaints against officers. The scheme is not used where criminal investigations are ongoing or pending. The scheme also appears voluntary for both officers and complainants and complainants can at any time come out of the process and ask for the complaint to formally investigated. Mediated complaints are not considered by the Department when reviewing on an officer’s employment record.

Complaints against the police can take up considerable time and resources to resolve. This pioneering scheme in New York involving a mediator is a solution worth examining. It appears to provide satisfaction to complainants whilst officers meet face to face and hear directly in a controlled environment from the complainant.

The use of mediation in police work was also highlighted by experienced mediator Philip Bartle QC in his article Policing protests: would mediation help? reported in the Times. Thanks to Justin Patten at Human Law for this link.

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Mediator, what do you think?

Philip Hesketh — Mon, 03 Aug 2009 06:54:54 +0000

One of the big debates in current mediation practice is whether or not mediators should be facilitative or evaluative. There seems to be a need to categorise mediators as one or t’other. An indicator of the latter is the willingness of a mediator to make mediator’s proposals with a view to breaking an impasse and brokering a settlement. John De Groote offers a definition of mediator’s proposals over on his thoughtful blog Settlement Perspectives.

Do you expect your mediator to make settlement proposals at any time during the negotiation; or only when there appears to be an impasse; or never?

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“Monied might wearying out the right”

Philip Hesketh — Thu, 16 Jul 2009 13:25:13 +0000

Alternative dispute resolution methods weren’t formally recognised but still existed when Charles Dickens wrote Bleak House in 1852/3. I’m sure the title referred to the Court of Chancery, not just the eponymous home of John Jarndyce. Dickens was uncomplimentary :

Well may the court be dim, with wasting candles here and there; well may the fog hang heavy in it, as if it would never get out; well may the stained-glass windows lose their colour and admit no light of day into the place; well may the uninitiated from the streets, who peep in through the glass panes in the door, be deterred from entrance by its owlish aspect and by the drawl,languidly echoing to the roof from the padded dais where the Lord High Chancellor looks into the lantern that has no light in it and where the attendant wigs are all stuck in a fog-bank! This is the

Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give–who does not often give–the warning, “Suffer any wrong that can be done you rather than come here!”

Was it this “wearying out the right” which Lord Clarke the Master of the Rolls was referring to in his recent speech in which he said at paragraph 14 :

Equally, the question will have to be asked whether it is proportionate to other litigants for their particular claim, to be pursued through formal litigation, or whether it would improve access to justice for other litigants if they mediated their case: see CPR 1.1(2)(e).

It seems extraordinary that the tactic employed by wealthy parties, of continuing litigation until their less pecunious opponent runs out of money, was common place even in Dickens time. It remains to be seen if the use of mediation will improve access to justice in these cases. I guess Bleak House would have been a much shorter novel had a Mediator been called in to the case of Jarndyce v Jarndyce.