Mediation vs settlement in property disputes – The Property Chronicle
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Mediation vs settlement in property disputes A look into power imbalances between borrowers and the bank

The Guest Essay

Chess pieces on a chessboard

Why mediate? Won’t a settlement meeting be just as effective? A recent case got me thinking…

At the end of last year, I mediated a case between a bank and a married couple who were property developers. It was a sadly all too familiar story of outwardly successful developers borrowing increasing sums of money against a number of properties, before the portfolio came crashing down in 2007. Since 2007, the borrowers and the bank had worked together (not always harmoniously) to attempt to resolve the position. Some 10 years after the first default, and as a precursor to the issue of legal proceedings, the parties agreed to mediate. At the mediation, a settlement agreement was entered into whereby the remaining properties were sold voluntarily over a period of time, with the proceedings divided up between the parties depending upon the overall sale value of the portfolio. The benefits to both parties were obvious: the bank got repaid; the borrowers retained their matrimonial home and were incentivised to sell the properties for the maximum amount so that they obtained a cash benefit. All good. Which got me thinking: why had the parties spent 10 years in dispute over the debt and why, despite all the many many meetings between the parties over those years, had it taken a mediation to resolve the matter?






The Guest Essay

About Rebecca Clark

Rebecca Clark

A rising star of the mediation profession, Rebecca Clark is “undoubtedly one to watch”. Before becoming a full-time mediator, Rebecca was Head of Litigation at a so-called “bad bank”, a role which resulted in her being awarded Legal Counsel of the Year at the 2013 British Legal Awards, partly as a consequence of her novel approach to resolving classes of disputes by mediation. It was her experience in this role as the client party at numerous mediations which lead Rebecca to train as a mediator; ultimately leaving that role to practice as a mediator full-time. Rebecca has also set up and managed her own retail business from scratch, receiving the coveted Drapers Award for Childrenswear Retailer of the Year in 2009. As a result of this, Rebecca has substantial business and accounting experience which she can draw upon in her mediation practice, enabling her to understand and empathise with the commercial issues faced by SMEs in a dispute scenario. Rebecca can be appointed through In Place of Strife, The Mediation Chambers at www.mediate.co.uk.

Articles by Rebecca Clark

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