Civil Engineering Reference
In-Depth Information
'you will lose this point' [several times] 'ill-conceived' 'fatally
flawed' 'incompetent'
'inexperience' [the other lawyer] 'we will be paying nothing' [they
did!]
throughout the document and was presented on the Friday night
before the Monday mediation. The effect on the claimant was that
they cancelled the mediation, and the mediator spent much of the
weekend persuading them to continue. They did agree to continue
and, predictably, counsel arrived late on the morning of the me-
diation, keeping everyone waiting whilst he briefed his team. His
actions were undoubtedly contrived to wind up the claimants, and
it took several hours to repair the damage and help the parties to
move towards settlement. The mediation did settle, but this was
made so much harder by the arrogance and insensitivity of the de-
fendant counsel (who left feeling very pleased with his performance
but saying 'I've just lost a £30,000 court fee').
Sometimes parties may wish to provide a brief 'for the mediator's
eyes only' paper in addition to the above. This may include comments
on relationships and other matters that could be difficult to include in
the exchanged summary.
In addition to the above there will be a bundle of supporting doc-
uments. Ideally this is a bundle that is agreed between all the parties.
Otherwise each party produces their own, and this leads to a lot of
duplication. In construction disputes particularly, the extent of docu-
mentation can be a real problem. Construction disputes are always full
of detail and the supporting documents can be vast: five to ten A4 sum-
mary sheets can be accompanied by five to ten lever arch files of sup-
porting papers; or even five to ten boxes of lever arch files of supporting
papers! (I do wonder sometimes if the often vast quantity of unneces-
sary paperwork that I receive has more to do with a billing motive than
considered usefulness!) The last thing that a mediator really needs is
files of daywork and time sheets, invoices and site records. Summaries,
perhaps; individual sheets, definitely not. Mediations never settle as a
result of discussions on detail. Those will have/should have happened
beforehand - and will have ceased to be useful - hence the mediation. In
the end global deals are done in mediation arising from discussions that
become increasingly general and 'big picture'. So the rule is to keep the
documentation as thin as possible. The last thing parties should need
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