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The Challenge of Mediation I am an advocate of the mediation process and consider that it has much to offer. I hope that readers find this interesting; some will possibly find it quite humorous as well as providing some basis for further thought. In very broad terms it is a recount of a recent experience which raises some interesting points and demonstrates how challenging acting as mediator can be. It does however also support the notion of the effectiveness of mediation even in quite difficult circumstances. I have acted as mediator, as well as party representative in mediation and am well versed in construction disputes. It will be of no surprise to readers that adjudication also features significantly within my varied workload. So, to set the scene, many will find the first part familiar. One afternoon I was at the office and I took a call from a building contractor who declared that he wanted to go to adjudication as the contract administrator had failed to pay him and, in any event, the contract administrator was the most unreasonable person he had ever met. Sound familiar? Anyway, I listened to the somewhat disorganised account of events and invited the building contractor to come and see me. He duly arrived later that week and the dispute essentially involved non certification of a final account. The contract administrator had alleged defects in the works, which was denied, and the building contractor had refused to return. The contract administrator had refused to certify any further sum until it was corrected. I am sure that many readers have been here before. Anyway, as I listened I considered that the dispute was more than suitable for mediation. So I explained the process, the advantages, some case law and further I observed that the sum in issue was relatively modest so I advised against pursuing adjudication immediately due to the in ability to recover costs. With further reference to CPR and potential cost sanctions should one refuse to mediate the building contractor decided that mediation was for him. Now I thought, just convince the contract administrator. That as it happened was a straight forward process, I simply wrote offering to mediate and the reply was immediate and positive. Now the twist or perhaps I should call it the challenge, despite explaining the process to the building contractor a difficulty arose. He advised that he was happy to mediate but he would not attend a meeting with the contract administrator as he was a most unreasonable man. Well I explained it does take 'two to tango' and I needed a decision maker from both sides for there to a reasonable chance of success. I recounted Dunnett and Railtrack and similar and highlighted the consequences of an unreasonable refusal to mediate and the reply 'I am not refusing to mediate I am just refusing to meet'. I thought, this was going to be hard work. I tried again to explain why meeting would clearly be of significant benefit. My communications at that point lead me to conclude that both parties actually wanted to settle. What was I to do? Resign? Advise a different method of dispute resolution? I was giving all of this thought when the building contractor phoned and asked if mediation could be done over the phone? Well it is, at least in theory possible I replied, which he said that's the answer then 'as long as I don't have to speak to that unreasonable man'. 'My goodness' I thought, I can fully understand how lack of communication plays a significant part in the crystallization and continuation of a dispute. Anyway, the contract administrator wanted to proceed as did the building contractor, as long as he did not have to communicate directly with the contract administrator. Well it's never dull and I have not held private sessions entirely over the phone before so I called a mediation meeting. Now I did manage to get agreement to a conference call for the joint opening session, but it was quite difficult as the building contractor said very little about his side of the argument, but to be fair he did not interrupt the contract administrator's account either. I went from a private session with the contract administrator to the car phone to speak with the building contractor and back again a number of times. Do you know - they managed to reach an agreement to settle the dispute, without speaking directly. With pace I recorded the agreement, obtained the signature of the contract administrator with witness, and then drove to meet the building contractor at a nearby location and obtained his signature with witness. Subsequently monies were paid and the matter concluded. So I guess I have to conclude that it is possible to mediate a dispute without the parties meeting or even communicating verbally. Somebody once said mediating was easy but I beg to differ. Quite what the courts would make of a party offering to mediate but refusing to meet or speak I can only imagine. I would welcome comments and observations from readers. Kevin Trash |
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