Civil Engineering Reference
In-Depth Information
4.4.10
Who attends?
Most mediators would urge parties to keep their teams 'lean and keen'
(few and committed):
There must be the highest level of decision maker that is possible;
often someone who has not been intimately involved in the project
and who therefore can stand back from the emotional pressures is a
good choice for they are likely to make a more dispassionate com-
mercial settlement.
The party's legal advisor is required, whether external or in-house.
After that, as few people as possible for the following reasons:
Experts rarely help move the dispute to settlement at a mediation.
They have done their report, possibly met with the other experts
and agreed common ground (or not), and it is highly unlikely that
they will alter their position in a mediation. Usually they do nothing
and say little. But there is a danger of their becoming a blockage to
settlement because they believe their version of the truth is correct -
just as the other side's expert believes their own version of the truth.
So best to leave them behind. They can always be on standby for a
conference call if the need arises. Most mediators, when faced with
experts in a mediation, will take the opportunity to put them in a
room together and, whilst not exactly locking the door, will try to
keep them out of the way for as long as possible.
More and more mediations have counsel present. This is another level
of expense that is rarely justified. Few counsel can resist assuming
leadership and doing all the talking. The worst will gag their clients
and treat the mediation arena as an extension of the courtroom. Gen-
erally, the counsel will have given their opinions, and these opinions,
like experts' reports, will invariably disagree and no amount of dis-
cussion in the mediation will change that. Mediations are settled not
on legal argument but on commercial imperatives. Counsel are best
left for after the mediation, and then only if it does not settle (which
of course most do). Having said all that, there have been some me-
diations where the presence of counsel has been a real force towards
settlement. The trouble is, you only know that after the event!
Those who were at the 'coal face' (site agents, foremen, etc.) can also
be a blockage. It may be important for them to attend the mediation
so they can tell their story, but there is always a danger that they will
get annoyed with other people's versions of the truth and become
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