There is much to commend mediation as a process – speed, costs savings, privacy. But there are two other important benefits. The first, is the opportunity to design a process that encourages constructive dialogue in circumstances where it is all but impossible. The second, is the opportunity to achieve an outcome that it would be impossible for a court or arbitral panel to order or award, that is far better suited to the parties and their needs.
Two recent cases illustrate these benefits:
The first, was a multi-party dispute arising out of the development of a brown field site. Various lenders supplied development finance to a development company which subsequently went into receivership. Various claims followed, including against and between directors/guarantors and allegedly negligent valuers. The dispute was complex, costs were a nightmare and everyone wanted to settle. But the disputes as between the directors and guarantors meant that any meaningful dialogue with other parties was impossible, as a year or so of costly solicitors’ without prejudice correspondence had demonstrated.
Once good friends and long-standing business associates, they were all blaming each other for their downfall and each had sperate representation. We mediated. At last, and of crucial importance, everyone was thinking about the
The mediation provided the glue with which
The second example concerned a refurbishment project for a block of luxury flats. Board approval was necessary and, for that purpose, a feasibility study was undertaken, part of which was the commission of a design for the works. A design company produced some designs. Approval was given, the design work was put out to tender but the design company that produced the original designs was not chosen.