The Association of Midlands Mediators
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The Association of Midlands Mediators |
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Information
Mediation is what happens when the parties to a dispute appoint a neutral person (the Mediator) to help them to find a solution. Mediation is a highly effective, confidential, economic and speedy process, which enables the parties to find their own resolution rather than having one imposed on them by a court or other tribunal.
It works because the process enables the parties to "have their day in Court", without risking any of the consequences of failure. Thereafter it assists the parties to focus on the real issues, establishing areas of common ground and exploring realistic settlement options. The evolving solution is concluded by way of Compromise Agreement or Consent Order.
The most common form of Alternative Dispute Resolution (ADR), involves the participation of a neutral Mediator to assist the parties in the dispute to negotiate a settlement. It is a voluntary process that helps the parties to reach a binding agreement more effectively than by direct negotiation or by litigation and with less costs, less disruption to management time and often with better solutions. Mediation cannot guarantee a settlement although the vast majority of disputes do settle either in the mediation or shortly afterwards.
What sort of Disputes
All kinds of commercial disputes are eminently suitable for mediation, also family and partnership matters. The significant advantage is confidentially. Almost any dispute is capable of being resolved by mediation.
At any time you wish, irrespective of whether or not proceedings have been issued at Court or at what stage the dispute or Court proceedings have been reached.
Routes - There are several ways to set up a mediation but we believe that the simplest way is to contact the AMM helpline and full assistance will be given. The various steps are described in the section entitled "Find a Mediator" and clicking on this link will take you straight to the information. In addition the National Mediation Helpline set up by the Civil Mediation Council will give assistance. Their web site can be found under the Links section of this site. Please mention the AMM if you contact them.
The dispute was between a homeowner and his builder over a domestic extension. As is often the way with small building works, the contractual arrangements were not very clearly recorded. The builder thought that the homeowner was going to supply the new windows himself. The homeowner recognised that they had discussed this possibility but was adamant that in the end, the builder was to supply them and had included the cost in his price. The dispute began when the builder submitted his final account which included an extra for supplying the windows. The homeowner refused to pay and the builder commenced proceedings. Through the intervention of the Court, the parties agreed to mediate and a mediator from the Association of Midlands Mediators was appointed.
At the commencement of the mediation, the homeowner informed the mediator privately that he had added a number of counterclaims against the builder that were not the subject of the Court proceedings. He said that if the matter was to settle then not only would he not pay a penny for the windows but the builder would also have to meet all of his new claims. However, the mediator spent some time privately with each party gathering information about how they had got themselves into this position. It soon became clear to the mediator that it was unlikely that the builder’s price had included the cost of the windows and when this was explained to the homeowner he started to realise that his case was not as cut and dried as he had thought. Very soon, this realisation led to the homeowner accepting a compromise suggested by the builder on the final account and the remaining counterclaims were quickly resolved.
No 2
This was a dispute between the owners of a residential dwelling and the builder with whom they contracted for the construction of a substantial extension. Initially the project went very well but began to go wrong towards the end of the project when the builder was asking for further monies and the householders were not satisfied with progress. Eventually the householders purported to terminate the contract on the grounds of the builder's repudiatory breach and brought in other builders to complete. The householders were seeking the extra cost over the contract price for doing the works. The builder had a counterclaim for the difference between what he had been paid to the point of termination and what he claimed he was due. By the time of the mediation each party had spent in excess of £20,000 in legal costs yet the amount in dispute could not, on any basis, exceed £28,000. Each party was represented by a solicitor. In addition the builder employed specialist construction counsel. Each party was entrenched when it came to which way the money was going to flow. The builder was insistent that no settlement could take place unless money flowed to him and equally firm in their apparent conviction were the householders which insisted that they had been treated so shabbily that the builder would have to pay them some money before the case could settle. There was also a further "hiccup" which emerged towards the end of the day when the householders pointed out that the extension had been built slightly higher than shown on the drawings and therefore there was a risk of an enforcement notice being served by the planning authority requiring them to take down the roof. A settlement was eventually reached which meant that the householders paid a modest sum to the builder in respect of the subcontractors outstanding invoice and the builder agreed to bear the cost of any remedial work that might in the future be necessary by reason of the planning breach. The key turning point in the mediation was achieved through use of the whiteboard to demonstrate to the builder that once irrecoverable costs were taken into account there was no upside in proceeding further even if he were to win at trial."
No 3
The publican, his wife, the doctor and his brother (the lawyer)
… no, not a Peter Greenaway film, but a real-life and bitter fight over some land. This story illustrates just how successful mediation can be.
The publican and his wife owned their own pub which had quite a bit of land. The pub had fallen on hard times, so much so that they decided to close the business and redevelop their property and build some houses. The problem was that part of their land was unregistered, and the two brothers, one a doctor, the other a lawyer, claimed they owned the unregistered land.
A court claim followed, and over the next 18 months or so they each spent a small fortune on the litigation. Finally, a few weeks before Christmas, and with the trial early in the New Year to look forward to, they decided to give mediation a go.
Now mediation can be very powerful and very challenging. In my private meetings with the two camps, I got them to open up to me about what they really wanted out of the case. I got some very interesting and unexpected answers. The publican and his wife told me that they had had to get on with the development, and had changed their plans as they didn’t want to risk building on the disputed land. They therefore said they were hoping the brothers would make them an offer. The brothers then told me that they had wanted to use the disputed land as access for a development, but they had since learned they would never get planning permission, and so they were hoping the publican would make them an offer.
I persuaded each to let me disclose their position to the other side, and an obvious solution presented itself. They agreed to join together to sell the land and split the sale proceeds 50:50. They could never have achieved this sort of outcome at trial. As it was, they each had some money left over after paying their legal costs – and a much happier Christmas!
No 4
The case was a claim for professional negligence over the drafting of a matrimonial settlement in 2001. A Letter of Claim pursuant to the Professional Negligence Protocol was sent in August 2004 and a Letter of Response from the Solicitor’s Insurers was sent in December 2004. The Defendant offered to pay £5,000 towards the claim together with costs to be assessed. The Claimant was seeking £90,000 plus interest and costs.
Detailed mediation Position Statements were submitted by both parties prior to the mediation. Both repeated the position of the parties as set out in the Protocol correspondence. The Defendant strongly denied liability.
At the joint session both parties made brief and helpful statements indicating their desire to resolve the matter at the mediation if at all possible. The Claimant spoke passionately about her disappointment that the matter had been going on so long and her sorrow that the solicitor, with whom she had previously been on extremely friendly terms, had not been prepared to admit liability.
It became clear in the first private meeting with the Claimant that her anger at the solicitor’s refusal to admit liability had caused her to seriously inflate the value of her claim.
In the first private meeting with the Defendant we explored liability. The Insurers’ solicitors quickly indicated that “liability is not our best point”. The reason that liability had been so strenuously denied was because the Defendant believed the Claimant was seriously over-valuing her claim. The Defendant was prepared to allow the mediator to inform the Claimant that, for the purposes of the mediation, liability was not an issue.
The knowledge that liability was not to be in issue for the mediation brought a dramatic change to the Claimant’s attitude. She was then prepared to go through the claim and discuss the quantum issues realistically. The Claimant agreed that the message she sent with her first offer may well determine whether or not the mediation would be successful. The Claimant offered to accept the sum of £30,700 plus costs.
The Defendant was delighted at the Claimant’s change of attitude towards quantum. It was clear from the offer that a realistic settlement proposal had been made and that the Claimant had constructed the offer based upon arguments which were sustainable. The Defendant’s first counter-offer was then made in the sum of £27,500 being much closer to their valuation of the Claimant’s realistic claim.
The matter settled very shortly thereafter including agreement as to costs.
No 5
A fairly standard commercial dispute involved a claim for about £30,000 by a supplier of wholesale foodstuffs to a chain of pubs. Unfortunately, the business relationship between the principals had deteriorated to such a degree that they found it impossible to negotiate a satisfactory deal, which they would normally have been able to do. They both instructed their lawyers.
Both firms of solicitors recognised that, although the amount at issue was substantial, if the parties resorted to litigation the costs would swiftly exceed the amount of the claim and neither party would benefit. They persuaded their clients to try mediation.
It was quite a hard day. Each side was able to outline the sorts of arguments and evidence that they would bring in support of their claim, which enabled their clients to see that maybe, just maybe, the other side might not be wholly wrong. Throughout, the lawyers and the mediator kept focussing the minds of the clients on the costs to both sides if they didn’t settle.
Eventually, the parties stretched to find a figure that they could both live with. They went away not happy – that would have been too much to ask. There wasn’t an outright winner – but neither of them were losers. If it had gone all the way to court, that it exactly what they would both have been.
Disclaimer - The articles and information contained on this website are general information only based on English Law. They do not constitute a comprehensive review of the applicable law nor is it intended to create a professional or business relationship.
The materials on this website do not constitute legal or other professional advice. Before acting or relying in any way upon any information given you should seek detailed legal advice. Any reliance upon the information provided is at the user's own risk and the Association of Midlands Mediators accepts no responsibility for any loss caused.
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