Mediation is first and foremost, an extra-judicial process. It is a process of empowerment for both participants in a dispute, to resolve that dispute, between themselves without the intervention of the law.
Mediation removes the uncertainty of judicial decision and as such, it can remove costly legal fees and protracted stress and anxiety. It is a form of ADR (Alternative Dispute Resolution).
Generally, mediators bring participants together, in a joint session, as a first step to aiding face-to-face discussion of the dispute. After that, the participants will have the opportunity to discuss anything about the dispute and it’s resolution, in confidential, private sessions with the mediator.
Mediators work to provide a platform for open and frank discussion of the dispute, for as long as both participants require; if a complete resolution is not reached during the session booked, mediation can be on-going, at ad-hoc cost.
Most disputes result from poor communication. Some conflicts are settled simply and quickly. Others take time.
It is the mediator’s responsibility to aid communication between participants and serve as a stimulant for negotiation between parties to reach a win-win situation.
Be it an agreement, settlement, or compromise, the final outcome has to be agreed by all participants. Commercial mediation is a cost-effective alternative way of resolving disputes without the need for litigation or arbitration.
Builder A contracted several domestic building jobs to builder B. Builder A inspected the first 2 jobs completed by B and signed them off as satisfactory. Builder B then completed a further 7 jobs but on invoicing A, was informed he would not be paid as none of the 7 were completed to satisfactory standard and had been “botched”.
Builder B initiated a claim for £9, 000 plus VAT plus costs (legal costs stood at £12,000 at the time of mediation). He claimed all the work was perfect and A was trying
to fleece him. During mediation, it transpired that one of the jobs was “botched” as admitted by B and that he was upset because he had entrusted the job to a colleague who took his money and didn’t actually complete the work as agreed.
Builder A admitted that he was hasty in deeming all of the 7 jobs as “botched” because he was under a lot of stress and was struggling to deal with the disgruntled home-owner of the “botched” job. After 4 hours of mediation, it was agreed that builder A paid builder B £4,500. Both builders apologised to each other for escalated miscommunication.
The legal processes were terminated and both participants agreed that they were relieved to be moving forward to concentrate on developing their construction businesses.
Mr. X was in the process of purchasing a large house, which had been used as a GP practice and which he wanted to convert into flats. The purchase of a large house, already partially split and in a good, local location, was seen as a unique and potentially very lucrative purchase for Mr X. Part-way through the conveyancing stage, he instructed his solicitor to hold off on completing any further searches for 2 weeks, as he was waiting for an official confirmation of a mortgage offer from his bank.
On receipt of the offer, he instructed the solicitor to proceed to exchange of contracts, at which point he was informed that he was no longer the buyer as the vendor had now accepted a larger offer from a third party and the vendor would be proceeding with them.
Mr X was very angry and upset as he had spent time and money getting to that stage and demanded to know why he had not been informed of a later, higher offer, as he should have had the opportunity to increase his own. As a result of being uninformed, he claimed a unique opportunity was lost, plus he had spent money on legal fees. His claim including bringing a case against the solicitor, amounted to nearly £90,000.
The mediation was attended by Mr X and a legal representative for the solicitor’s professional indemnity insurers. After 6 hours of mediation, the insurance company conceded that Mr X had indeed lost a potentially lucrative business opportunity but stated, if he was to look a little further afield, there would be other properties with similar potential and therefore, this opportunity was not unique.
They agreed to pay Mr X £34,000 which covered his legal costs to that point and in addition, left him with a small deposit for a future purchase.
A family dispute, where siblings were bequeathed a house in Exeter and a house in Finchley. The brother continued to occupy the house in Finchley, despite it being very large and expensive to maintain, hence it was becoming run-down. The sister lived in a house she had bought for herself in Winchester.
The property in Exeter had been renovated by the sister, in order to rent it out. She had paid £9,000 for the renovations, to which the brother had refused to contribute, claiming that he could have gone to Exeter and completed the work much more cheaply, himself.
The sister maintained that time was of the essence, as she needed the rental income quickly. She also wanted to renovate the house in Finchley in order to sell it and realise some capital but her brother had steadfastly refused to vacate.
At the time of mediation, the sister was keeping all of the rental income from the Exeter house and about to initiate costly proceedings to force the brother out of the Finchley house. At this time, the brother was counter-claiming for half of the rental income to date and preparing a case in law, in order to remain in the Finchley property. At mediation, it transpired that the brother had a flat in his own right, to which he could relocate. He conceded to move out, sell and split the assets of sale of the Finchley house, 50/50.
He relinquished all claims on any past or future rent from the Exeter property as long as the property remained in their joint ownership with him having a 60/40 share of the title.
After 6 hours of negotiation, both participants stated that they were relieved that a family feud was over and costly legal proceedings averted.