Mediation is not just about sorting out disputes between two businesses. Disputes also arise every day in various areas of your personal life. Mediation is almost always the best way to resolve apparently intractable situations. There are so many advantages of mediation.
This page touches on just a few of the areas where the Mediator would be delighted to help you.
You might also like to learn more about the Mediator’s attitude and our process so far as it relates to personal affairs.
Apart from your business affairs, we can help you to resolve disputes in connection with:
- Your family business – directors, shareholders, management
- Wills, inheritance, trusts and probate
- Loans and debts
- Employment claims
- Easements, covenants, rights over land, boundaries, neighbour disputes
- Personal injury claims and professional negligence
- Small money claims
- Equestrianism, farming and the countryside
For general information relating to the above subjects please follow “Business Mediation”.
Often the backbone of a family’s wealth, the time comes when important decisions must be made as to the direction of the company, strategy, management, share ownership and power in the round.
As you will see from the Mediator’s CV this is another area where he has special interest and very broad experience.
It is very easy to categorise issues but it is neither possible nor helpful to put your problems into a pigeonhole. Your mediator has to be able to assess personalities and relationship dynamics in a way that does not apply in any other type of mediation. There is no textbook solution to your particular problems.
Particular differences between mediation in the family company on the one hand and most other business disputes on the other hand is that family situations are complicated by the dynamics of the relationships and the fact that there will be multiple parties involved in the conflict. Each person has his own interest to protect. Some will be well able to protect their interest; others may need help. Allegiances will certainly be different – and often unexpected.
The Mediator’s approach
It is often difficult in this situation for the mediator to obtain precise instructions. He would usually look to the managing director or chief executive officer as a starting point but would expect to change what is required as the mediation process unfolded. For example it may be necessary to explain technical solutions within the framework of the Companies Act, or to explain proposals at a general meeting, or to adjourn the proceedings for a few days while someone takes advice from his solicitor.
After talking to one of the most senior people the mediator should then move to others who are closely involved, gradually building up a picture of relationships, interests and comparative power. The mediator will continue with that process until he is happy that he has sufficient information and psychological understanding of the different elements of the dispute.
If you so wish, the mediator will also be able to discuss your problems with some other trusted third-party such as your accountant.
From that point, the mediator is looking at solutions and testing them against what each of the main participants would like to see.
The confidentiality inherent in the mediation process is particularly useful in this area.
The argument could be between two or more family members or, more often, it is between family members on the one hand and someone who is not part of the family on the other hand. The fact is, that money is desperately important to every one of us. While some people may signal their virtue by claiming that money does not buy happiness, it is also true that we cannot be happy unless we are able to obtain what society regards as the basic essentials for a reasonably happy life.
Litigation relating to probate, the construction of a will, and similar issues often has to be heard in the High Court and not in the local County Court. Today (2020) you cannot blink in the High Court for less than £100,000. In contrast, you can settle even in quite a complicated dispute through mediation for less than £5000.
There are additional and particular benefits to mediation in this area of our lives, as follows:
- the level of secrecy required in your personal affairs can be increased by arranging for mediation to be conducted in a private venue, such as your home;
- time is less pressing. It is unlikely that someone’s life will be on hold as it would be for example in a divorce or separation dispute. That means a mediation session can be adjourned so that progress can be considered and others consulted before resuming;
- at least some of the mediation process could take place at a distance, whether by telephone or email or Internet. The Mediator is well aware of the advantages of online mediation and happy to mediate substantially by email and telephone.
Many disputes arise from a loan agreement within the family. Problems start from day one when the fact of the family relationship influences the lender to make a loan on conditions far softer than he would, had his borrower been an arms length third-party. In other words your cousin or your nephew gets a better deal than someone introduced to you by your butcher or bookmaker.
Because it is seen as inappropriate to enter into an agreement which properly protects the lender, many family loans are based on word-of-mouth or very simple documents, often a letter or an email message.
As a result, as the years go by, memories drift and each party tends to recall those points which best benefit his position. The creditor remembers the certainty of promises to repay whilst the debtor remembers the casual flexibility offered by the lender.
Differences are likely to emerge when the personal circumstances of one of the parties changes unavoidably. Marriage, divorce, business failure, loss of job, the arrival of children, and many unforeseen events cause problems. Such problems can be resolved through mediation.
In many cases the family dispute it turns out that both parties are willing and determined to find a resolution but dare not speak out to the other of them. The mere presence of the mediator to lead a meeting and open up alternative proposals, can often lead to a quick settlement.
We are still considering your personal affairs – but not family affairs. This paragraph relates to your employment. The judgements of employment tribunals are less consistent and often less logical than the decision of a judge. Employment disputes therefore cry out for mediation.
It has often been said that employment law favours the employee. This is often true in relation to the very large sums often awarded to a claimant. Nevertheless, there are good reasons why both employers and employees should try to avoid the tribunal system.
In most cases, the backstop offered by the tribunal system cost a great deal of more money to the employer than it does to the employee. The employer must constantly bear in mind the effect on other staff of the way in which the entire dispute process is handled, both within the organisation and then later, at the tribunal.
To the employee, there are additional particular advantages of mediation. You may be able to negotiate benefits that are outside the scope of what an employment tribunal could order. You will probably be interested not merely in compensation but in preserving your reputation, obtaining a good reference, possibly continuing your present employment, and of course, getting on with your life.
Most importantly, however serious your dispute is, mediation will leave your relationship with your employer less acrimonious that it would be after a tribunal claim. It is possible that, even if you take new employment elsewhere, your paths will cross again.
Most employment law mediations take place on the premises on the employer. That might not be possible if the company does not have a totally private space. The employee may also feel insecure on the company’s premises, preferring an entirely neutral location. Apart from that, considerations are: distance and travel time, travel cost and hire of rooms. Here are some useful suggestions.
Please note that the mediator is not in a position to advise you in connection with a prospective claim. You may well need legal advice. Your best starting point may be www.acas.org.uk .
If you are also a director of the company which employs you, there are additional considerations for both sides. The most important is confidentiality. The bottom line is that mediation is absolutely confidential. It is not just a question of the world not knowing. In a family company situation, it is also a question of the relatives and wider family not knowing.
For deeper information about disputes between directors or partners, look at “Boardroom and partnership disputes”.
For more on other employment, see “Employment disputes”.
This is an area where the Mediator has particular experience acquired over many years variously ,as a house owner, in construction, in office and residential development, in planning issues, in litigation over many different rights over land. Learn more information about how The Mediator deals with such issues.
Every professional takes out insurance against the risk of negligence. It follows that when you make a claim, you are not dealing with the professional person but with his insurer. However, many exceptions arise for different reasons. Examples are:
- your claim is of comparatively low value and the professional person wants to avoid a mark against a long-standing claim free policy (just as we all do with motoring policies)
- the work done for you is outside the scope of the policy;
- the excess on the policy covers a large proportion of your claim.
So it is a mistake to assume that your architect, dentist or hairdresser is likely to be willing to take a risk in the County Court.
Your solicitor will not take a risk
Most insurers have very deep pockets and have negotiated fee arrangements with solicitors and barristers in such a way as to enable them to conduct litigation at comparatively low cost and with known strategies which increase the costs for a claimant and extend the duration of the litigation process.
If your solicitor is working for you on a no win no fee arrangement, he carries all the risk of the possibility of losing and having to pay the costs of the other side in addition to receiving no money for his own costs. In exchange, you have a greatly reduced sum to pay him upfront or as the case proceeds. The cost to you is the percentage share of your success which he takes in return. The benefit to you is of course the fact that you are not at risk of losing a great deal of money if your case fails.
The longer your claim drags on through the litigation process the greater the sum at risk to your solicitor. As this time passes, he will therefore be more inclined to suggest that you settle your claim at a value which keeps him/her safe but which may not be in your best interest. We certainly do not criticise a solicitor for this. It is often the only way you could afford to go to court.
In mediation, that advantage to the insurer is lost. The cost to you is precise, and agreed in advance. In so far as you need help from your solicitor, you can arrange a fee for him/her too.
Full disclosure helps you too
One of the most basic features of mediation is full disclosure. If each side is to put his claim as forcefully as possible, he/she has to support it with whatever evidence he can. That means disclosing material upfront which may well have been held back for strategic purposes in litigation.
Full disclosure also applies to the claimant too. He/she cannot claim to be unable to walk without crutches if he/she has accepted work with the local authority in refuse disposal or joined the local tennis club.
The fact is, in mediation, each side can fully understand the strengths and weaknesses of the case of the other of them. Both will be more confident to accept settlement terms which are fair and realistic rather than permitting their solicitors to delve and negotiate through several years of litigation.
A dispute with any professional person
During our lifetime, each of us relies heavily on the expertise of other people. Invariably, the professional relationship is such that we have an expectation that the person we have instructed will support us and sympathise with our intentions. Mostly, they do.
It is most important that in making a claim against a professional, you are able to change that mental image completely. The person you are claiming against is no longer the smiling and supportive colleague. His best interest is now to oppose you as strongly as possible. If you want a fair deal out of a mediated settlement you must therefore prepare your case just as thoroughly as you would against someone who had crashed into your car.
By far the majority of everyday disputes have such a small money value that it is not worth time and trouble even to take the dispute to mediation. Like many of our colleagues, we do try to help you with this problem by providing simple telephone-only mediation of money claims valued up to £25,000.
The Mediator has personal experience and ongoing interest in all things equestrian and accordingly is particularly enthusiastic about helping you in this sphere.
Disagreements happen every day. Only the intractable ones come to mediation. Remember that mediation is not just for big money disputes. With online and telephone mediation, small money and non-money claims can be sorted out at very low cost.
Sometimes, just the fact that it is the mediator on the end of the phone and not you personally, will make it easier for the other party to understand your position and explain his own.
Other claims in your personal life can be immensely important, whether measured by the money or stress or relationships. There will be situations where even a full day mediation meeting will not be long enough to crack all of the problems.
Many of the claims in this section – and many more that we have not mentioned – are heavily influenced by a relationship. That relationship is often very precious and very fragile. Your mediator will be aware of that and be able to help you to seal all the cracks in your egg, and often maybe even to put Humpty Dumpty together again.
The beauty of mediation is its flexibility. It does not have to do fit your preconceptions
NOTE: Most of the information and procedures set out in the business mediation section of this website also apply to the sort of disputes discussed in this article