Blog: Mediating in the Twilight years

I have had a spate of mediations recently relating to parties in the latter stages of their lives. A number of issues arise in these situations, that mark them out as cases where extra considerations may need to be borne in mind at the mediation.

  1. When one or more of the parties are represented by someone acting under a Lasting Power of Attorney, they may have a limited authority to settle. Indeed it may be necessary to obtain the sanction of the Court of Protection to any Settlement Agreement.
  • In reaching any such settlement, the Mediator’s usual mantra of the “soft costs of litigation” (time, effort, etc) are irrelevant. The Attorney has a duty to act in the best interests of the Donor of power, irrespective of how much time and trouble it will cost the attorney on a personal level.
  • The capacity of an individual to still give some evidence or to form a view about a matter, notwithstanding the appointing of an Attorney, may be necessary to consider. It may be possible for someone still to have capacity regarding some of the important long-term issues while being incapable of recalling minutiae from the short term memory.
  • The ability to achieve total closure may, depending on the circumstances, be severely curtailed by the possibility post death of a claim for example under the Inheritance (Provision for Family and Dependants Act) 1975 or the currently fashionable promissory estoppel doctrine.  
  • There may be issues of how the spending of diminishing assets on legal and associated costs or indeed as part of a settlement agreement may be viewed by the Local Authority when determining at what point they will fund care.
  • The psychological issues at play are even more complex when none of the key protagonists are present. Those representing them under a Power of Attorney have duties to perform on their behalf. But they are still human, often closely related to the donor, and usually untrained in the difficult art of putting their own emotions, views and interests to one side (something a mediator is trained to do on a daily basis).

Ultimately, conflict takes its toll on anyone. But on those who are frail and in their twilight years its toll may be even harder. And those representing them do not have an open hand to deal as they might if it were their own conflict. They may further be burdened by the question “what would X have wanted if they were looking after this?”, to which the answer can only be surmised.  The sooner these cases can be resolved with a solution satisfactory to all the better for everyone concerned.

The recently reported case of John and Anne Scarle, the elderly couple who died in their home, is an example of how conflict can arise when even the best made plans are in place. They each made a will leaving their estate to the other, and on the second death for it to be left to their own children (it was a second marriage). The daughter of the second person to die would therefore inherit the total amount of their combined estates. Sadly, the husband and wife both died from hypothermia in the course of a week, but it has not yet been possible to ascertain who died first. This has led to litigation between the two stepsisters as to who inherits the combined estate. There is a legal presumption that the older person died first, but this can be rebutted by evidence. Perhaps a case as binary as this, where at court one stepsister stands to gain all and the other to lose all, is ripe for a mediation with its flexibility of outcomes and the possibility for the combined estates to be shared between them if they were to so agree? Of note however is that the Revenue would still apply its own deeming rules relating to Inheritance Tax irrespective of any such consensual agreement…a good reason to always take tax advice before entering in to any settlement agreement.

Rebecca Attree is a Mediator and Solicitor with Hexagon Mediation


Workshop 23 July 2019 11.00 -13.00 Brixton, London: How to resolve conflicts quickly and easily by Mediation

I am delighted to be invited by BrixtonBID to deliver this workshop to local businesses . For more details, see http://www.brixtonbid.co.uk/event/how-to-resolve-conflicts-quickly-and-easily-by-mediation/


Free Webinar: Negotiating and Decision-making in Mediations 24 July 2019

I am holding with Michael Farrier a free webinar on negotiating and decision-making in mediations and the importance of adopting the right approaches to both when you are a party or an adviser to the process.

When agreeing to mediate, it is vital to your commitment to compromise and to the prospects of a successful outcome, that you adopt a clear negotiation strategy for the day, so as to know what success for you looks like. 

And, by adopting that strategy at mediation, you are then able to focus your attention and efforts on decision-making as the day proceeds. If you do these two things, the mediation day is more likely than not, to be a success for you. 

Date: 24/07/2019
Start: 12.00
End: 12.45
Cost: No charge
Location: Online

I am running this webinar with Michael Farrier, a partner and accredited mediator with Boyes Turner’s Employment Law team and colleague at Hexagon Mediation. If you have any questions about this event, please click here. We look forward to welcoming you.
Register here

Webinar: Managing Conflict – Workplace Mediation for HR Professionals


Webinar: Mediation for the Modern Workplace – a time for change

Date: 14/11/2018
Start: 11.00
End: 11.45
Cost: No charge
Location: Online

I am pleased to invite you, in conjunction with Boyes Turner’s Employment Law team to join us for a webinar on mediation for the modern workplace and the benefits for your organisation in approaching conflict management differently.

Current grievance and disciplinary management tools may achieve compliance but they are of limited value in achieving the right, balanced and lasting outcomes to unhealthy conflict when it arises. These established procedures are not fit for purpose for the modern workplace, failing to address the real issues at the heart of employee relations conflicts. It is time for change.

In this session Michael Farrier, Partner at Boyes Turner and I will look at an alternative approach to conflict measurement and management which can be of immediate benefit to organisations. Adopting and embedding the principles of mediation into your culture and conflict management processes can provide immediate benefits to your people and culture, as well as achieve considerable costs savings in parallel.

Both Michael and I are CMC Accredited Mediators and Workplace Mediators.

We hope you can join us.

If you have any questions about this event please contact me.

Register here


Mediation in the Modern Workplace Seminar

Mediation in the Modern Workplace Seminar was organised by Hexagon Mediation on Tuesday, 9th October from 6.00pm.- 8.00pm at the Boardroom of Laytons, London Bridge, London. (The photo is of the view from the boardroom that evening).

Part of Mediation Awareness Week, Hexagon’s seminar  was hosted by a panel that comprised fellow founding members of Hexagon Mediation Michael Farrier, Stephen Walker and myself.

Our intention was to raise further awareness of the increasing appeal of mediation in the modern workplace as an alternative, or additional method of resolving employee relations-based conflicts. The session sought to challenge delegates to try a different approach to conflict management when next faced with a grievance or disciplinary issue that may be appropriate for mediation.

We gave insights as workplace mediators into our own experiences of businesses that have embraced the principles and practices of workplace mediation. We compared workplace mediation to other forms of mediation and explained how many aspects of each of the processes overlap. Workplace mediation blends private caucuses and joint meetings and can be with or without lawyers present.

The seminar was warmly welcomed by the audience which included other practising workplace mediators, HR professionals, HR leaders, in-house counsel and lawyers, and civil and commercial mediators who have all had experiences of internal conflict management. Finance managers interested in reducing conflict costs also found this topic of interest.

There followed a lively debate about how workplace mediation can and should be integrated into the culture of businesses, schools and charities.

Thank you to all those who attended and your kind feedback.


What does a Mediator really do and see Capuchin Monkeys reject unequal pay

What does a mediator really do?

I have been asked this question a number of times this month by people ranging from a highly experienced QC to a litigation solicitor and a party in dispute.

I can understand why this may be a mystery to many. After all, even if they have been to numerous mediations, they will have probably seen the mediator for at most half of the time. A great deal of what happened the rest of the time is confidential and cannot be disclosed to them.

So let me unravel some of the mystery…

A good mediator will help a party:

  • to ascertain what they really want, and what is important to them;
  • to understand the strengths and weaknesses of their case, not just from a legal perspective, but also from an evidential and a commercial point of view;
  • from there, to do a cost: risk benefit analysis for the best, worst and most likely outcome at court. In other words, how much would they net receive or lose depending on the court decision. The cost: risk benefit analysis is expanded to consider other factors such as management time and resource, stress, loss of ability to take up other opportunities/ loss of sleep (yes, really);
  • to overcome blockages to decision making by addressing psychological biases (watch this space for a future blog). As a taster, see this short video ‘Capuchin monkeys reject unequal pay’ https://www.youtube.com/watch?v=L2ui97YPPsg
  • to structure a deal that works for all, taking into account all of the above, and the future plans of each party.

A good mediator will also enhance communication between the parties by:

  • ‘taking the ‘heat’ out of what is said by one party by rephrasing it in more neutral terms to the other;
  • Ensuring the timing is right for when key messages are conveyed; and
  • if authorised, tell each party the other feels the same way (a powerful message, often unsaid in earlier direct communication between parties).

These are just some of the many techniques a mediator has in their toolkit. No two mediations are ever the same, and a good mediator will select the right tools for the job on the day.

Rebecca Attree, Mediator and Solicitor, Attree & Co

 


One of my favourite Christmas gifts – New Year 2018 video

To see one of my favourite Christmas gifts  – a video made by a grateful client promoting my mediation practice – click here. Thank you to all my case referrers and parties who appointed me last year. I look forward to working with you and those you might recommend me to this year.


Anglo German approaches to Mediation – why so different?

The UK is still in the EU alongside Germany, yet recently I was surprised when working with a German accredited Mediator how practices and techniques differ greatly between our two countries. Lack of awareness of these differences could easily give rise to loss of trust in the process or the other party.

 

First, in England it is usually expected that each party will begin in a separate room and have a “pre-mediation chat” with the mediator. In Germany, such practice may raise questions of bias and lack of neutrality on the part of the mediator. A German Mediator will almost always invite both parties to begin in the joint room together straight away.

 

And there, in Germany, they are likely to remain, for some time. This is in contrast to the English preference in civil mediations to move to private caucuses (meetings) at an early stage after a joint open session (if such session even happens at all).

 

During this joint open session under the German Model it is likely that parties may express emotion, probably more so than they would be encouraged to do so in England. “Venting” is given more merit in Germany than often is the case in England. Indeed a core part of the lengthy German Mediation Training is a module in Non-violent Communication as advocated by Marshall B. Rosenberg, PhD. (An excellent communication model used to negotiate peace treaties and with terrorists, yet to play a part in English Commercial Mediation training).

 

So from this we may glean that a German mediation is more likely to be direct and face to face than in England.

 

If as a party you doubt whether you will be able to express your emotions well at mediation, fear not. Some German Mediators engage the technique of “doubling”. This involves the mediator kneeling next to the party and seeking to express their emotions for them. The party will advise if they have got it right, wrong, or almost right.

 

What about the language of the mediation? This should be agreed at the outset, and stuck to. Some international disputes use a mediator that can speak two languages fluently. However for certainty it is best to keep all discussions in one language.

 

What role is the mediator likely to adopt? In England the purist approach is the mediator is a facilitator, who will enable communication between the parties and assist people in dispute to assess their case and the other party’s case. Many mediators will go further and either subtly (by questioning and body language) or overtly evaluate the strengths and merits of each party’s case. In Germany, the mediator will start being facilitative and might later ask the parties whether they wish an evaluative approach.

Mediation is certainly a more cost effective and quicker way to resolve disputes than going to court. The cost of a mediation in England will vary depending upon the experience of the mediator, the value of the dispute and other factors such as the complexity of the issues and the number of parties in dispute. Whatever that amount may be, a mediation in Germany is likely to be cheaper, since the mediator’s overheads and venue costs are usually lower. If the language of the contract being disputed and the working language of the parties is English, it is best to have a mediator who has an excellent command of English.

 

I was recently asked how ethical it is if one party is speaking in a foreign language and you understand it, but do not divulge this to be the case. I believe such disclosures should be made at an early stage to avoid any breach of trust arising. However not every culture would take such a transparent approach… So ascertain at an early stage the linguistic skills of those with whom you are mediating if you are planning to have discussions in a language other than the one designated for the mediation.

 

Finally “getting on with it”. The main remedy before a German Court for breach of contract is specific performance. Something that is rarely ordered by the English courts, who more readily award monetary damages. Therefore expect a German business to come to mediation with a mind set borne from that legal approach. They will most likely expect the failing party to remedy any defects and execute the contract. Money alone is unlikely to solve the dispute.

 

In international mediations even more care should be taken than in domestic ones not to jump to assumptions and to find out the approaches a mediator is likely to take well in advance.

 

Rebecca Attree M.A. (Cantab), International Civil and Commercial MediatorScreen Shot 2018-01-16 at 19.20.06 Screen Shot 2018-01-16 at 19.20.06


Successfully Mediating Family Business Disputes Webinar

Family business disputes are a sensitive area, and mediation can resolve disputes without the difficulties associated with going to court or arbitration.

We had a large turnout for my recent webinar which discussed: the reasons for using mediation to resolve family business disputes, how to prepare for such a mediation and how to measure success.

The webinar has received some incredible feedback, including thanks from the Legal Counsel of a global FTSE 500 company. The content has also been described as ‘helpful and interesting’ by an experienced Barrister, who is also a Civil and Commercial Mediator.

You can listen to the webinar here. To discuss how I might help you or your client resolve a dispute, you are welcome to contact me for a confidential discussion.