Solution Focused Personal Injury Mediation

Solution focused conflict managementThis week I am delighted to welcome Fredrike Bannink, a mediator and much more from Amsterdam. Fredrike has recently published the Handbook of Solution-Focused Conflict Management.

She has kindly allowed me to publish this extract from the chapter of her book about personal injury mediation.

Is your case is suitable for mediation?
Call me on 0845 056 3625 for a free consultation.

In solution focused conflict management the focus is on what those concerned would like instead of the conflict and how they can achieve this (a future focus), rather than on the conflict itself and what has preceded this (a past or present focus). Haynes, Haynes and Fong (Mediation: Positive Conflict Management (Suny Series in Transpersonal and Humanistic Psychology)) also state that a mediator can only mediate in the future tense. They propose that a mediator uses future-focused questions (Bannink, 1001 Solution Focused Questions. Handbook for Solution Focused Interviewing (New York: Norton)) to initiate change: “Most clients are highly articulate about what they do not want and equally reticent about what they do want. However, the mediator is only useful to the clients in helping them to determine what they do want in the future and then helping them decide how they can get what they want. It is difficult for the mediator to help clients not get what they do not want, which is what the clients expect if the mediator dwells with them on the past” (2004, p. 7)

Solution focused conflict management has proven to be effective in domestic situations, contract negotiations and even in criminal mediations. In these scenarios non-traditional agreements are more easily developed. These situations are usually accompanied by a great deal of emotion from the clients involved.

As a result, words of validation and giving apologies may carry significant weight. Foa and Foa ((1975). Resource theory of social exchange. Morristown, NJ: General Learning Press.) developed a theory about the kinds of compensation that are considered appropriate as repayment for certain kinds of concessions. They identify two dimensions: concreteness (tangibility) and particularism (the extent to which the value of the resource depends on the identity of the person who delivers it). Love and status are particularistic resources; goods and money are non-particularistic resources. In their studies they showed that a form of compensation is more appropriate, the closer it is to the resource received. Thus goods can properly be exchanged for money and status for love.

But money cannot properly be exchanged for love or a good relationship. Therefore, in personal injury mediation, powerful tools for improving or ending a relationship in the best possible way can be a personal meeting with mutual acknowledgment and understanding or one in which apologies are offered.

Solution focused conflict management may be fertile ground for creating positive emotions (Positivity: Discover the Groundbreaking Science to Release Your Inner Optimist and Thrive) and thus finding creative solutions because the issues at hand are more complex than just simple dollar figures. Clients can be helped to realize that no conflict is as simply defined as a matter of dollars and cents.

Book Telephone Mediation on line
from just £179 plus VAT per party.
The mediation solution for fast track cases.

Transatlantic perspectives on personal injury mediation

FlagsI saw this story about a Californian personal injury claim being referred to mediation and this one about historic abuse cases being resolved by mediation and decided to ask my colleagues at the American Institute of Mediation why American and Canadian lawyers are so much more likely to use mediation to resolve personal injury disputes than their British counterparts. I have kind permission to quote the contributors to the debate.

Ben Cunningham, Austin, Texas

The bottom line is (as in every mediated settlement) if a settlement is something that the parties on both sides find acceptable in light of the law, facts, economics, and personal situations of the clients, a resolution that provides certainty and finality is more often than not preferable to the toll of on-going warfare (with the factor of lengthy appeals that can take years, which are common in the American system), the expense of experts, depositions, etc., and the uncertainty of outcome. Doing the math, it is often the case that, say, a $75,000.00 settlement to be paid within two weeks of the mediation is preferable to the chance that the plaintiff might get zero or $150,000.00 at a trial, which might be many months away and subject to the appeal process in the event the plaintiff does prevail.

Augustus Richardson QC, Halifax, Canada

Most personal injury matters that aren’t settled by the lawyers end up in mediation. I suspect part of the reason lies in the fact that mediation gives both sides the benefit of an objective outsider’s view of their respective cases–gives the clients (particularly the plaintiffs) a chance to become subjects again (that is, to become active rather than passive participants in the system)–and because it gives both sides a chance to back out out gracefully from positions they may have boxed themselves into.

Ben Cunningham

Mr. Richardson’s comments are perceptive and well stated. First, the value of having a neutral third party with (as we say in Texas) “no dog in the fight” allows the mediator to focus on the actual issues in dispute, the dynamics of providing a platform for the parties to switch from an adversarial mode to an interest-based cooperative paradigm, can empower the parties and counsel to move forward in a more rational fashion. Second, Mr. Richardson is correct: the mediation process is one of the few (if not only) opportunities that the parties themselves (I sometimes refer to them as the “real live humans” in the litigation process) have control over the arc and outcome of their dispute.

Fredrike Bannink, Amsterdam, Holland also joined the debate saying mediators can help clients to understand that no conflict is as simply defined as a matter of dollars and cents. She devoted a chapter on Personal Injury Mediation from a Solution Focused perspective  in her recent book Handbook of Solution-Focused Conflict Management.

Everett v Comojo (UK) Ltd [2011] EWCA Civ 13

Met Bar

The case of Everett & Anr v Comojo (UK) Ltd involved the question of the liability of bar or night club owners for acts of violence committed by one guest on another. The facts The appellants, Mr Everett and Mr Harrison had both been stabbed whilst drinking in the Met Bar in the Metropolitan Hotel…

Historic abuse cases settled through mediation.

historic abuse cases

Recently there have been a number of reported cases involving claims for personal injury compensation arising out of historic sexual abuse. By their nature the legal issues have usually involved the application of Section 33 of the Limitation Act 1980. Cases include A v Hoare [2008] UKHL 6, Raggett v The Society of Jesus Trust…

“Cherry picking” solicitors ruin CFA theory – Jackson.

Lord Jackson

My regular reader of this blog knows I have been following the Jackson review of costs over the past 18 months or so. Lord Jackson has issued his response to the consultation paper issued by the Ministry of Justice  in November last year (if you want to add your response you’d better hurry, the consultation…

Does Naomi Campbell’s case affect personal injury CFAs?

European Court Human Rights

In MGN Ltd v The United Kingdom the European Court of Human Rights declared that the CFA regime – as it applies to breach of confidence cases – violates Article 10 of the European Convention on Human Rights. The judgment clearly has serious implications for breach of confidence and privacy cases but does it have…

Injured boy scout entitled to compensation.

I guess this case was considered in the light of Lord Young’s review of health and safety. Ward LJ confessed to finding it “uncommonly difficult to reach a confident judgment”. The case is The Scout Association v Barnes [2010] EWCA Civ 1476. Keep in touch with mediation news. Subscribe to my blog or newsletter. The…

Position Statements and the Mediation Agreement

Mediation Position Statements The “traditional” preparation for mediation includes both sides exchanging position statements. My experience is these are often inadequately produced and simply regurgitate the contents of the pleadings. I prefer to receive a simplified statement which is focused on a few important issues. I want each party to prepare a position statement telling…

Risk assessments for personal injury mediation

Risk Assessments Risk assessments are the foundation for success at mediation. The work done in the technical analysis of the case will feed directly into your negotiation strategy (that will be a subject of a later post in this series). In all probability most of the risk assessment will have been performed already but it…

Harvey v Plymouth City Council [2010] EWCA Civ 860

Is your case is suitable for mediation? Call me on 0845 056 3625 for a free consultation. The Appeal In Harvey v Plymouth City Council [2010] EWCA Civ 860 the claimant suffered serious injuries when he fell down a sheer drop of about 5.5 metres from land owned by the council to the car park…

free case assessment

Is your case is ready for mediation?

Call me on 0845 056 3625 for a no-obligation case assessment.

Get the news

Keep up with developments.
Subscribe here for my monthly mediation and negotiation newsletter.