Civil Engineering Reference
In-Depth Information
gives everyone the freedom to try options for settlement and discard
them if they do not work. Similarly, it means that decisions on individual
pieces of the jigsaw do not have to be agreed until the whole jigsaw
is complete. Sorting one issue and then parking it and moving on to
the next issue is a common approach. Parties usually need to see how
everything fits together before finally committing themselves to a deal.
Most often, it is the final sum that is the main interest (to all parties),
and the small pieces are just steps on the way.
Case study
A four-party construction mediation involved an adjoining owner
claim, the developer of an adjoining site, a structural engineer
and main contractor, and concerned the subsidence of an adjoin-
ing property that had been inadequately shored during excavation
works on the adjoining site. The issues were calculation of dam-
ages, negligence, appropriate mitigation and consequential losses
arising from delays to the adjoining works. Insurers were present.
There were in effect three mediations:
1.
level of damages paid to the adjoining owner (developer/
adjoining owner)
2.
who paid and what proportion (structural engineer/contractor)
3.
amount of delay and loss and expense (developer/contractor/
structural engineer)
The first mediation achieved a settlement subject to the second
being resolved (in other words, the amount of damages was agreed
subject to the insurers agreeing apportionment). The apportionment
was agreed subject to the third mediation being resolved because
the structural engineer's insurers were also potentially liable for a
similar proportion of any payment justified by the contractor. In the
final stages of the mediation all three settlements happened in the
space of half an hour once the various sums had been agreed. In the
end the developer agreed not to deduct liquidated and ascertained
damages and the contractor dropped his loss and expense claim,
which in turn enabled the structural engineer's insurer to agree
a higher percentage of the damages to the adjoining neighbour.
Everyone smiled, signed the settlement agreements and had a glass
of wine.
89
