Civil Engineering Reference
In-Depth Information
Case study
A mediation involved an overseas party, who flew in to the UK the
day before the mediation and tabled, to everyone's surprise (includ-
ing his own lawyer's), a further claim (in addition to replacement of
faulty goods and loss of profit) for restitution of property after the
removal of faulty equipment. The party had no supporting docu-
ments because the work had not (yet) been carried out. Needless to
say, it was not treated very seriously by the defendant party and the
mediation did not settle because they would not take account of the
new claim. Indeed no offer of settlement was even tabled because
the respective figures were so far apart. Subsequently the restitution
work was actually done and the costs incurred were reimbursed as
part of a deal reached in another day of mediation (the defendant
insisted on reducing the settlement figure by the cost of the first
abortive mediation). The lesson to everyone was that, whilst it is
accepted that it is more difficult with parties who are based outside
the UK, there had been insufficient time allowed by the claimant's
team for proper preparation.
One of the advantages of mediation is that it is a flexible process and
so it can be adapted to any situation. Although most mediations follow
the framework noted earlier in this chapter, designing a process that
suits a particular circumstance or party is always a possibility. In such
circumstances, a pre-mediation meeting with the lawyers, and possibly
the parties as well, would be valuable. The rule, in a process that has no
(well, few) rules, is that anything is possible (so long as the parties agree).
4.4.15
Pre-mediation contact
From the moment of appointment there will be some contact between
the mediator and the lawyers. It is a time when the mediation agreement
should be circulated so that the lawyers can agree the terms before the
day of mediation and so that the conditions, particularly the confiden-
tiality provision, can operate from the very first contact. Nearer to the
mediation date and after reading-in, it is normal (or should be) for the
mediator to make more formal contact with the lawyers, and sometimes
with the parties (see Figure 4.1). The appendix contains a typical check-
list that the mediator might use. The purpose of the call is to
61
