Mediation

Dispute resolution through traditional routes such as litigation, arbitration and even adjudication in the construction industry can be expensive, uncertain, slow and disruptive.  Mediation is a form of assisted negotiation that is both fast and inexpensive.  Mediation should be considered in any proper risk assessment prior to deciding how a dispute is to be resolved, as after all, most clients would prefer an agreed rather than an imposed solution, and to reach it as quickly and as inexpensively as possible.

Mediator Experience

Anthony Glaister is past chair of the Association of Northern Mediators and sat on both the Law Society ADR committee and the Civil Mediation Council for many years.

What is the cost?

Unlike in other sorts of dispute resolution Anthonycharges a fixed fee for the first day or half day which may include preparation time. Usually the Mediator’s fee is split equally and may be as little as £750 per party for a very small mediation. The important thing is that it is agreed beforehand and only varies if the documentation is excessive making preparation far harder or if the mediation continues longer than allowed.

Face to Face or Online Mediation

Mediation mostly takes place with the parties negotiating either in separate rooms  or the same room, which we call face to face mediation. We increasingly do mediations on line using all the available tools to us from video links via Zoom or Microsoft Teams to simple combinations of email, text and telephone. What is appropriate will be agreed beforehand dependant on location, expense, ease of access and other factors. In remote mediations unrepresented or concerned parties may be offered technical support by the mediator.

Typical Mediations

Agriculture

A partnership break up of a family farm is unfortunately a regular occurrence. Relationships are inevitably very tense.

Finding agreed solutions that avoid breaking up farms into unviable units is difficult. I encourage family members to work together  to perhaps create solutions that they didn’t imagine were possible before the mediation such as maximising value by diversification or restoring the working relationships to avoid the farm splitting up.

I have handled produce disputes between producers and purchasers, livestock problems with horses and pigs and game bird rearing between shoot and adjoining farmers.

Property disputes are rife in on and over the countryside and I have dealt with rights of way, riparian rights, tenant landlord relations and title disputes.

Commercial Contracts

The largest section of disputes mediated involve the breakdown of a commercial relationship. Maybe this involves quality or quantity issues between vendor and purchaser. On many occasions the breakdowns lead to a cessation of commercial activity between the companies. Mediation can restore relationships or it can simply achieve a commercially sensible deal that alluded the parties in their direct negotiations.

Take for example a tripartite dispute involving a manufacturer in France, a distributor and an end user retailer in the UK. Dealing with different jurisdictions and more than two parties adds to the expense of resolving any dispute. Mediation provides the happy medium of achieving a workable result that suited everyone. The manufacturer was paid something, the distributor who damaged the goods shared in the costs and the buyer was just happy to achieve a quick result and went on the deal with the manufacturer again.

Construction

This sector provides the most regular source of mediations whether they be large disputes between developer and main contractors, and respective layers of sub contractors and consultants, or smaller domestic building disputes. Whilst adjudication may be available that may be costly and damages relationships.

On the larger scale take for example a dispute between an international manufacturer and a contractor over a final account. There were many issues such as time and loss and expense. The mediation provides a forum for discussion and presentations in two cases including slide shows. The flexibility of the process and the traditional private sessions provide the right level of dialogue to reach settlement either on or sometimes shortly after the mediation takes place.

At the micro scale you have often small disputes where the costs of resolving them would be far more than the value of the complaint. Consider using conciliation where for a fixed price I can do a time limited mediation followed if necessary by a temporarily binding decision. My work with the FMB and their Building Guarantee Scheme shows how well this works often for a cost of less than £500. Do take look at my review of David Richbell’s book on mediation in the construction industry by clicking the ‘More Info’ tab above.

Instructing solicitors – Eversheds, Gordons, DLA, Hill Dickinson, Pinsent Masons, Watson Burton and many others.

Inter-family Business and Property

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Franchise

Owners of a franchise business are often in conflict with the franchisor over trading terms, property usage or termination arrangements. Regular settlement conferences and mediations usually culminate in workable settlements securing either a clean break or in some cases renewals of the agreement.

Restoring relationships between franchisor and franchisee can be really satisfying. The British Franchise Association recommends mediation to its members

Partnership and Professional

There is nothing like partnerships for having really messy disputes usually over termination arrangements. I have developed a specialisation for mediating very difficult interpersonal disputes. Trust and rapport between mediator and party and being able to maximise the efficacy of legal representatives is key to securing workable solutions in partnership breakdowns. There is very real satisfaction in hearing a pair of solicitors who were partners for years not having spoken for years and then resolving their litigation by capping it with arranging to play a game of golf the following week.

Professional Negligence

Professional people get themselves involved in negligence claims and I have mediated claims involving surveyors, solicitors, architects and others with PI insurers either in attendance or otherwise contactable. My specialisation in construction disputes is particularly useful in understanding the technical details.

Instructing solicitors; Berrymans, Beachcrofts, Haliwells, Hill Dickinson, Squire and Co, Watson Burtons and Weightmans.

Property

‘An Englishman’s home is his castle’ whether we refer to an estate in Scotland to a boundary dispute in Scunthorpe. Property ‘rights’ make fertile territory for disputes. I have mediated disputes involving boundaries, rights of way, options to purchase, valuation, landlord and tenant, development land, ransom strips, farms etc. They have a high settlement rate, particularly where the high cost of not settling is compared to often the modest size of claims.

Trust and Probate

Having developed a particular bias towards family related disputes, the fall outs involving relatives and erstwhile colleagues of the deceased and those benefiting from trusts can provide real challenges to the mediator.

Recent examples include resolving two mother/son disputes one establishing a trust for circa £1 million in favour of grandchildren, and reorganising the inheritance of a farm/estate, and disputes over Variation of Trust Act claims.

I also have experience in:

  • Banking
  • Company disputes involving directors and shareholders
  • Corporate recovery
  • Defamation and all types of intellectual property including patents
  • Employment
  • Transport and freight