Mediation – How Do I Approach It?

  • By Elizabeth Repper
  • 01 Feb, 2017

In this article, our panel mediator Liz Repper looks at practical tips for parties attending mediations.

Businesses and individuals are choosing mediation to try to solve their disputes.

Some, rightly, have in mind the courts’ firm encouragement of mediation as a process and the (now many) cases where a party has been penalised for unreasonably failing to participate in Alternative Dispute Resolution (see for example PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 ). Some focus on the potential to resolve matters speedily and without ever having to issue proceedings or divert and deplete resources. Some favour a process which allows common-sense non-legal solutions to be agreed and soured relationships rescued. Some have heard that mediation creates a confidential arena where reasons for bringing or defending a claim can be aired.

Being a party at a mediation is however a skill. Here’s some of my tips on how to do it.

1.   Remember, you’re not in court

Parties sometimes approach mediation like it is a trial. It is not.

Most mediators act as facilitators and don’t therefore give a decision or view. Instead they listen privately to each party, use their knowledge of the subject area to test parties’ positions and strategise to try to find a path to resolution. Since there is no obligation to prove your case to the mediator, time should be spent on persuading the other party and preparing position papers and points that speak to their decision maker.

Constantly keep an eye on the time. Parties typically agree to have an eight-hour mediation, even for cases that would be listed for far longer trials. Consider, how can you make the best use of the time available? Is there a document you can prepare which short-cuts matters by presenting points in a certain way? Can examples be used?

Remember mediation is a process that adapts to the case at hand. Traditionally, mediations commence with an open meeting. Sometimes however a different process suits better. Ask yourself, what may work best for this specific case?

Never forget that the mediator has no power of compulsion and that parties attend mediation voluntarily. Ensure your team all buy into keeping the mediation day going. If the other party wishes to speak directly to one of your team or show them a document, even if you’re inclined to refuse, think carefully before doing so.

2.   Begin at the end

Unless parties walk away, disputes end in settlement or formal proceedings.

Start by considering what the end of formal proceedings looks like for each party. What will happen if the case doesn’t settle today? What points are each party likely to win? How much will it cost each party to adjudicate, arbitrate or reach trial? What is each party’s best and worst day in court? Are there funds available to pay? What will happen to business or personal interests while litigation ensues?

Consider then what the end of this settlement process may look like and write a draft settlement agreement (even if for your party’s eyes only). This will allow time to ponder, research and fill in any information gaps. A draft agreement will also act as a checklist and help avoid any “late in the mediation day” surprise requests.

Don’t stop there however. Try to think like the other party. What might a deal look like for them?

Now consider, what parts of your draft deal could you compromise on? What parts of the other party’s potential deal could you live with?

3.   Ask yourself, how did the parties get here?

When a judge asks why monies have not been paid, the answer may be that there’s a dispute about the meaning of the contract. While that may be true, parties can dig deeper at a mediation and ask themselves, how did we get here?

Never forget, every day people could fall into dispute with others, but do not.

Revisit the moment the parties fell out. Ask yourself, is the case just about the construction of a contract or is there something more? Were there crosswords? Does someone feel let down or betrayed? Might there be a feeling of being ignored or not taken seriously?

Often parties cannot move to the idea of settling without facing such non-legal issues head-on.

4.   Team mediation

Now you’ve established what each party is likely to want, focus on bringing the right team. Someone with full authority to settle must attend. That person will also need to appreciate the voluntary nature of mediation and be ready and able to address parties’ needs.

Has a business or personal relationship broken down? If so, would someone unconnected help? Might it work better for the people concerned to sit together and talk?

Do you suspect that the other party feels they’ve not been heard? If so, bring someone who will be prepared to meet face to face with someone from the other party, listen, acknowledge and try to address what they’ve heard in an effective way.

5.   Fresh air and sandwiches

Finally, mediation days are sometimes long. Always ensure the venue is suitable, refreshments are available and people can, if they wish, step out for some fresh air.

Liz Repper is a member of the M4C Mediator Panel

This article first appeared in Proceedings of the Institution of Civil Engineers - Management, Procurement and Law. Volume 169, Issue 4, August 2016

All-Party Parliamentary Group on ADR

By Chris Reeves 27 Jun, 2017
Constructing Excellence South West have circulated news of the new Construction Mediation Guide and Protocol. The press release is here: http://www.constructingexcellencesw.org.uk/assets/newsletter/jul17/story3.htm  where a copy of the Guide can be downloaded
By Chris Reeves 07 Jun, 2017

Constructing Excellence South West, in collaboration with Mediation for Construction (M4C), has identified the need to highlight how mediation can and should be used to resolve disputes and Constructing Excellence South West has given its support and encouragement of the use of mediation as a process of resolving disputes.

To promote the greater use of mediation, a CESW Construction Mediation Guide and Protocol has been prepared by a drafting committee: Alan Tate (Trowers and Hamlins LLP), Chris Hoar (Michelmores LLP), Stephen Homer (Ashfords LLP) and our founder Chris Reeves. The Guide will be launched at the summit on 9 June 2017, details o which can be found here  

By Chris Reeves 06 Jun, 2017

Location: Reading, Berkshire

Date: Wednesday 4th July 2017

Event programme:

 09:00  Registration and welcome
 09:30  Speaker – Chris Reeves

  • Overview of mediation compared to other dispute resolution processes
  • The new edition of the Construction and Engineering Pre-Action Protocol
  • What the courts and civil procedure rules are saying about mediation/why mediate
  • Why mediate – the commercial reasons
  • The typical mediation process
 Lunch break
 13:45  Speaker – Elizabeth Repper

  • Practical tips on how to prepare for mediation and how to be a party at a mediation
  • Workshop of construction based scenarios to demonstrate how to approach a mediation
  • Conclusions and summaries
For booking please click here

By Chris Reeves 06 Jun, 2017

Join us for a very informative CPD event covering all the ins and outs of mediation in construction disputes:

What is mediation: an introduction to mediation

Why mediate: the factors as to why one would mediate as well as dispelling some common myths

When to mediate: the factors that affect the timing of when to mediate

Making the most of mediation: tips on how to make the most out of the process

How to encourage parties to mediate

Click here  for full details

Places are limited so booking is essential at: events@m4c.org.uk


By Blog Admin 13 Apr, 2017

Special guest:

Jackie Gregory-Stevens FRICS MCIArb CEnv

Head of Commercial - Major Projects - Babcock International Group

17:30 to 19:30 on 16 May 2017

2hrs CPD

By Joanne Pye 06 Apr, 2017
M4C panel member Elizabeth Repper discusses recent commentary from the Courts on when to mediate and sanctions for not getting on with a proposal to mediate. A link to Elizabeth’s article can be found here:

http://constructionblog.practicallaw.com/mediation-update-the-question-of-when-and-costs-sanction-fo...
By Joanne Pye 05 Apr, 2017
Readers will probably be aware that one of the issues that often arises in construction disputes regarding extensions of time is the issue of who owns the contractor's float in his programme. Contractors invariably include a contingency period in their programme of works. This can be either a contingency specific to a particular item on the programme or a general contingency, for example the last two weeks of the programme prior to the contractual completion date. Stephen Homer talks us through how this works under NEC3.

When a contractor applies for an extension of time the architect will often look to use the float to mitigate the delay caused by relevant events. The contractor will often be of the view that the architect is not entitled to do this as the contractor placed the float in his programme for his own use. The contractor will argue that the delay should be measured from the contractual completion date rather than the beginning of the float period.

When considering this issue, the first place to look for guidance is in the contract itself. Although unusual, it is possible for the contract to stipulate how the contractor's float should be used in these circumstances. However, the JCT and PPC 2000 contracts are silent as to contractor's float.

The NEC contract on the other hand stipulates that the programme to be provided by the contractor is to identify float, planned completion and contractual completion dates together with other information.

Whilst under most forms of contract extensions of time are to be measured from the contractual completion date, this is not the case under NEC. Clause 63.3 of the NEC3 Contract states that a delay to the completion date is assessed as the length of time that, due to the compensation event, planned completion is later than shown on the accepted programme. Where the contractor's programme shows planned completion 2 weeks earlier than the contractual completion date with 2 weeks float then it is the planned completion date from which delays are measured in granting an extension of time and the contractor keeps the benefit of the last two weeks float period in his programme.

If, on the other hand, float is shown as apportioned to various items of works programmed to take place prior to the planned completion date then this float will be dealt with in the same way as the float under JCT contracts. Whilst every case turns on its facts, the general rule here is that unless the float has already been used by contractor delay, the contract administrator can use the float to mitigate the effect of relevant events (although there has been judicial commentary that if there is then some later delay event, for which the contractor would not be entitled to an extension of time, the architect should then grant an extension for the period of float used previously to mitigate an earlier relevant event). In this way the contractor is not permanently deprived of his float.

Stephen Homer is a Partner at Ashfords.This article was origninally published on the NEC - Adjudicators Website
By Joanne Pye 20 Mar, 2017
M4C are pleased to support this event and our founder Chris Reeves will be speaking on the programme.

If you want more information or want to make a booking please go to the event here:   Bevan Brittan Mediation in Practice
By Joanne Pye 15 Mar, 2017

Date: 22 March 20017

Time: 8.15am - 9.30am - breakfast bacon rolls, tea and coffee will be provided

Address: Woodwater House, Pynes Hill, Exeter EX2 5WR

The event will be of particular interest to architects, quantity surveyors, engineers, project managers, building owners and managers, contractors and sub-contractors as well as construction lawyers and claims consultants. 

If you are able to join us, please contact a member of our team to confirm your place by calling:

0203 411 4425 or email admin@m4c.org.uk

By Joanne Pye 10 Mar, 2017

Simon Henderson:   “I am delighted to be joining this exciting new organisation. Although mediation has become increasingly popular in recent years, it is still under-used in the construction world where traditional forms of dispute resolution are often seen as the first rather than the last option. I am confident that M4C can play an important role in changing this culture and by doing so, M4C can provide real assistance to all those involved in the construction industry to achieve cost-effective solutions which benefit all parties to disputes. I am greatly looking forward to contributing to this change.”

Chris Reeves, Founder of M4C:  
“The news that Simon decided to join Mediation for Construction has been welcomed by everyone. Simon is a fantastic and exciting addition to our unique group of highly respected accredited construction lawyers and I look forward to the benefits that Simon’s knowledge and experience brings to not only our group but also our clients".

SIMON HAS OVER 20 YEARS' EXPERIENCE AS A BARRISTER SPECIALISING IN CONSTRUCTION AND TECHNOLOGY DISPUTES

Simon was called to the bar in 1993 and has been a barrister at 4 Pump Court since completing his pupillage there in 1994. He specialises in construction and technology law and related professional negligence and commercial work. He is CEDR-accredited and part of CEDR’s UK Mediator Panel. Read more ...
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