Do you remember the Heineken advert, which claims that its beer refreshes the parts which other beers cannot reach? Well…mediation is similar!
Neighbours are in dispute. One has obtained planning permission for a rear extension and begins construction. The other objects because her right of light will be interfered with, but, instead of talking, the construction works continue and injunctive relief is sought. Lawyers are instructed, costs escalate, the relationship deteriorates and legal proceedings are commenced. The neighbours are on a collision course. They are in the hands of the court system, out of control, with no certainty of outcome, even though each neighbour has been advised that they will win in court – an impossibility, I hear you say!
All the issues were discussed in mediation and practical solutions (e.g. reflective glass) were discussed. It soon emerged that the objecting elderly neighbour was very disabled and found it challenging to get out of the house to see her friends and to do the shopping. The final paragraph of the settlement agreement is worth quoting in full:-
“10. Party A agrees that on every Saturday morning for a period of six months from today’s date Party A will go to Sainsbury’s (or such other supermarket as Party B shall reasonably nominate) to do Party B’s shopping”.
Not the sort of order, which a judge would make. It unlocked the dispute and the extension proceeded.
Another great story is the one about two multinational companies in dispute over the supply of an allegedly defective construction digger. The claim value was about £50,000 and at the time of mediation the total legal costs incurred had exceeded the amount of the claim. Estimated costs to trial were also significant. No-one was going to win in court, except on a point of principle.
During mediation, through the mediator’s skilful use of open questioning, the following facts (not apparent from the mediation bundle) emerged. Each company had an annual turnover of about £40million. They had been doing good business for over 10 years. The managing directors of both companies had attempted to settle the disagreement but one had put the phone down on the other, so they had instructed expensive lawyers to litigate. Due to a certain available advantageous tax breaks, there was a window of opportunity to do further business within a relatively short period.
The case settled on a drop hands basis with a verbal apology and an agreement to discount future transactions to an amount equivalent to an agreed percentage of the disputed sums.
Three years later I was having a conversation with the parties and asked how things were going. “Brilliant” they said in unison. Since mediation we have done 10 more deals and there is more in the pipeline.
In both cases mediation refreshed parts which a Court decision could never have done.
Mediation makes sense!
Henry Minto
Civil and Commercial Mediator
February 2017