We can help you to resolve disputes in connection with:
A family business is often the backbone of a family’s wealth, but the time comes when important decisions must be made as to the direction of the business, strategy, management, share ownership and power in the round.
Your mediator will not be concerned with what went wrong or who backs whom. Mediation as a process is perfectly suited to helping you to work out your problems very privately and at low cost.
The key to your success in this is to find a mediator who is steeped in understanding of how small companies work, what sort of problems arise and what solutions work best.
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. For that reason 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 was required as the mediation process unfolded. For example it may be necessary to explain technical solutions within the framework of the Companies Act 2006, or to explain proposals at a general meeting, or to adjourn the proceedings for a few days while someone took 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 (2019) 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 £1,000 to £5,000.
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.
Many disputes arise from a loan agreement within the family. Problems start from day one when a family relationship influences the lender to make a loan on conditions far softer than he would impose, had his borrower been an arm’s 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. These circumstances are perfect for resolution through mediation.
In many cases of 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 a mediator to lead a meeting and open up alternative proposals, can often lead to a quick settlement.Workplace disputes are particularly suitable for mediation, particularly when the parties would like the employment to continue. This applies whether or not the contract of employment specifies mediation as the final step. In other words, you should not regard mediation as a way to resolve the dispute only when one side or the other expects the employment to terminate.
What is more, you are probably aware that 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.
Because employment law favours the employee, no matter how senior she or he is, it is logical for an employee to press his claim hard at the start in the hope that his employer will make concessions which are driven by the cost of an employment tribunal rather than the facts on the ground. Of course, you can use this strategy successfully in mediation because that legal background is still the backstop if mediation fails.
However, in considering this backstop you have another advantage over your employer. For him, the expense of the tribunal hearing may not be substantially lower than the cost of a county court hearing in a different area of law. But for you, a tribunal hearing will cost far less and is affordable. That gives you a strategic advantage in negotiation before a mediator.
There are yet more advantages of mediation. As an employee, 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.
What is more, however serious your dispute is, mediation will leave your relationship with your employer less acrimonious that it would be after a tribunal claim. Unless you are close to retirement, it is possible that, even if you take new employment elsewhere, your paths will cross again. We suggest it must be in your interest to conduct your negotiations at mediation in such a way as to bear this in mind.
Finally – a note of caution. Despite what well-wishing friends may tell you, you should also consider the level of your own risk at a tribunal. It could just be that the tribunal does not agree that your case is worth the level of compensation you hoped to achieve.
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.
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 is certainly www.acas.org.uk .
This is an area where the Mediator has enormous experience acquired over many years variously as an owner of multiple houses, in construction, in office and residential development, in residential and commercial investment, in planning issues, in litigation over many different rights over land.
In your personal capacity, you or a friend or relative will almost certainly have had a run in at some time, with a neighbour.
The Mediator has probably handled a case similar to yours and will be able to contribute ideas about how such a dispute can be handled.
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.
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 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 safe but which may not be in your best interest.
In mediation, that advantage to the insurer is lost. Even if your solicitor is helping you with mediation on a no win no fee agreement, the chance of his having to pay out a large sum of money if by chance your claim were to fail, falls almost to zero. It follows that he can help you to negotiate a tougher deal through mediation then you could obtain through litigation.
Of course, the best interest of the claimant would be to renegotiate the agreement with his solicitor, so as to take account of the reduced risk and consequently give the claimant a larger share of the settlement money.
The insurer’s advantage is lost
One of the most basic features of mediation is full disclosure. That’s one of the reasons why confidentiality is so very important. If each side is to put his claim as forcefully as possible, he 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. It also means that there is no room for cheating. The insurer or solicitor cannot claim that the surgeon made no mistake if his own expert’s report clearly indicates the contrary.
Full disclosure also applies to the claimant too. He cannot claim to be unable to walk without crutches if he has accepted work with his local authority in refuse disposal.
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.
Your solicitor’s role
In deciding on the appropriate process and venue for your claim against a professional person, you should first consider the extent to which you should be represented by your solicitor in the mediation process. If your claim is of comparatively low value and you are dealing with the professional person personally, then you may decide to resolve your dispute without help, particularly if you have taken legal advice at some stage beforehand.
If your opponent is represented at the mediation hearing by his insurer or solicitor then you should most certainly instruct your solicitor to attend too. Your solicitor may be able to make a preliminary arrangement with the insurer to cover the full cost of the mediation, including his own legal fees.
As to the mediation venue: very simple claims can be mediated on the telephone, or by a combination of telephone and email. As soon as you reach the point where you instruct your solicitor to support you, and certainly beyond a claim value of say £20,000, you will probably prefer to sit down with your insurer’s representative and hammer out a deal around the table.
Many professional negligence cases are document-heavy. That means you should be sure to book enough of the Mediator’s time to enable him to assimilate the documents.
Prepare your case thoroughly and carefully
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.
Every country in the European Union must by now have in place an effective system of alternative dispute resolution to help a consumer to claim against the trader who may be located in a different country within the union.
Most countries have adopted a mediation process for this purpose. Mediation in the UK was already well advanced but nevertheless many mediation organisations here do specifically provide for telephone-only mediation of claims valued up to £25,000.
The Mediator has personal experience and ongoing interest in all things equestrian (except racing and carriage driving) and accordingly is particularly enthusiastic about helping you with an equestrian related dispute.
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 a 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 should be aware of that and be able to help you to seal a 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 fit your preconceptions.
NOTE: Most of the information and procedures set out in the business mediation section of this website also apply to personal mediation.