Case Examples – What actually happens in a Mediation
Watch John Gunner Mediating with international colleagues at a mock International Commercial Mediation in Brussels:
http://youtu.be/uGwVLy2kCOA
Other real case examples from InterMediation's Court-referred experience:
1 – The House Extension Dispute
A homeowner and their builder fell out over the extension and modernisation of a substantial country house. Building had stopped when payment was withheld and the parties both went to Court.
The Mediator talked to both sides personally and confidentially to check on the issues which were actually important to them and what they required to move on. A Mediation was arranged on neutral premises.
Both parties were sad that their previously friendly working relationship and trust going back many years appeared lost. The homeowner felt unable to occupy the house in its current incomplete state and the builder did not feel confident of being paid if he finished the work.
The Mediator brought the parties together round a joint meeting table and chaired a short opportunity for each of them to explain how they saw things and how they wanted to find a resolution. They both had the chance to offer some clarification and ask one or two questions face to face. This was the first time they had spoken in nearly a year. It was clear that even though they had seen a lot of formal position statements prepared for the Court Hearing misunderstandings remained. Both felt better understood after their opportunity to set things straight and both privately told the Mediator that they had not known how strongly the other felt and why.
The parties went to their private rooms with their representatives to consider what they had heard. The Mediator then moved between the parties helping them focus on their important issues, seeking clarification for them and discussing potential opportunities to suggest mutually-acceptable solutions that delivered mutual gains.
The builder had no room to manoeuvre on compensation because of a client leaving them with a bad debt. They needed to avoid a County Court Judgement as this would further harm their credit rating. The homeowner needed resolution of an electrical issue and a guarantee that work would be resumed and completed satisfactorily. With the help of the Mediator, the builder agreed to instruct an independent certified contractor who could supervise the completion of the disputed quality of a small part of the work and sign it off to produce the certificate the homeowner needed. I turn, the homeowner agreed on a framework for further work which (unknown to the homeowner) would fund the builder through their difficult business period which potentially risked insolvency. Importantly for both, the relationship was restored and both achieved what they needed.
The Settlement Agreement was drafted by the Mediator with the input of the parties’ advisors and formed the basis of a Consent Order endorsed by the Judge.
2 – The Country Club Surveyors Contract Dispute
A large County Club and Hotel had been issued with a notice by the local authority to cease discharge of waste, but the Country Club denied being the source of runoff to a local pond. They engaged engineering consultants to establish a defence to proceedings but the costs exceeded an original estminate due to the overrunning of a Hearing and attendance of experts and witnesses at Trial. They found themselves in dispute over £15,000.
The Judge Ordered that the parties attempt Mediation and InterMediation was appointed. Mediation Agreements and invoices for a 4 hour Mediation The Mediator read the Court file and all Pleadings, then listened to the parties privately and discussed their interests and views on the issues.
A Mediation was arranged near the County Court with a joint meeting room and private rooms for the parties and their advisors.
A short joint session facilitated by the Mediator brought out a number of new pieces of information which had remained unclear despite many months of previous correspondence. First, the Mediator made sure that the parties all had an opportunity to explain and clarify things on a Without Prejudice basis, so that everyone was confident that nothing discussed could be used for or against them formally if they did not reach agreement.
In private meetings with the Mediator the parties were able to consider the merits of various issues and the possible outcomes should a Trial be necessary. The Consultants’ team were keen to recover at least something and maintain their policy of always pursuing non-payment to protect revenue. The Hotel was considering insolvency and was unlikely to be able to make any payment. They were, however, anxious to preserve any business relationships and attempt to trade out of their problems. For this to work, they needed to avoid any potential risk of a County Court Judgement and impact on credit rating.
Following some very difficult considerations of the realities of their situations, the costs and management time and effort to date and the uncertainty of the outcome, the parties looked carefully at some shared interests. The hotel agreed to arrange a corporate conference weekend for the consultancy and up to 100 of their staff or clients, or make the event transferable so that the consultancy could either donate or sell the valuable package if they felt unable to utilize the opportunity themselves within an agreed reasonable time. The Mediator helped them draft a Mediation Settlement Agreement. This provided for the proceedings to be Stayed for the parties to carry out the agreement and to bear their own costs. The Court was sent a copy and made it into a Consent Order so that the parties’ own wishes were given official sanction.
The parties both received something of what they needed, avoided further risk and costs of an ‘all-or-nothing’ outcome imposed on them and achieved something that would not have been available to them at Court.
