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Demonstration Mediation
David Simmonds assisted by a cast of thousands, 6th June 2006
Mr Bodger and Mr Planit were great friends and close neighbours of many years. Their families visited each other regularly and went on holiday together. The two men had worked jointly on a number of building projects from which they shared the profits. Bodger was the builder and Planit the architect/certifier.
Unfortunately they fell out over the eventual subject matter of the mediation, which was a small development for which Planit owned the land and had produced designs including the foundations. Bodger had had difficulty with the foundations, which had caved in and been the subject of far greater cost than he had anticipated. Bodger's interim payment application was reduced to half by Planit and a row had broken out involving personal threats, assault, and the police.
Bodger then left site, the wives stopped speaking to each other, and Planit's daughter had to move to another school. Bodger's loan from Planit for buying a boat that was supposed to be repaid from Bodger's share of the profits remained unpaid.
Bodger and Planit each claimed breach of contract and involved solicitors who recommended mediation, to which our heroes reluctantly agreed. The saddest part is that the story is essentially true.
Enter the cast;
- Planit by Clem Danin
- Bodger was played by Derek Ross
- Mr Stitchemup, the surveyor, by Tony Hardwick
- and the Mediator was David Simmonds who stood in admirably at
short notice for Rod O'Driscoll
Our Mediator set the scene by explaining some of the features of mediation:
- non-binding until a contractual compromise is achieved,
- entirely consensual,
- confidential,
- potentially saving in cost and time, but flexible, and
- open to extremely creative solutions.
The process required a room for each party. Bodger was alone but Planit was accompanied by Mr Stitchemup. The Mediator brought both sides together, introduced himself, and described what he proposed to do. In doing so he obtained confirmation that those attending were authorised to make the necessary decisions. He explained that: the proceedings were entirely without prejudice and no one involved would be subsequently forced to give evidence. Further, anyone may abandon the process at any time. He gave his solemn undertaking that anything disclosed to him would be confidential except matters for which he received express permission to disclose to the other side.
At this stage the parties were asked to explain their grievances with each other, which they did. Once they had let off steam the Mediator asked them to retire to their private rooms and the caucus process started. The Mediator spent periods of time with each party in turn travelling back and forth between them having explained that nothing turned on whom he saw first or how long he spent with either side. Each was separately asked if they were content with the process so far and to enlarge upon what they had said before the caucus started.
The Mediator elicited the following during the caucus;
Bodger wanted his work to be valued at the rates from a standard price book plus 15% in accordance with the agreement. He disclosed that Planit received 20% of the building costs as a design fee. The water table was much higher than had been allowed in Planit's design but the difficulties had not been discussed as they arose. Bodger had given a 7 day notice of leaving site and wanted £147K to cover costs to date whereupon he would be prepared to return to site.
Planit admitted that he had undervalued the interim payment. The application had been £90K but he had allowed £60K. The personal threats and assault were an issue and he required an apology. He wanted Bodger back on site and would review the design of the foundations and revalue the Works in order to achieve that.
The Mediator was permitted to disclose all the foregoing to the respective opponents save the admission of under-valuation.
Having reached this stage the Mediator explained to his pupils that he needed to try to deflate Bodger's expectations and deal with the apology and the police action on the assault. He approached Bodger first and enquiries about family relationships resulted in Bodger admitting that the two wives were probably not on speaking terms and that his wife had talked of leaving him. Bodger conceded that if he had been in Planit's shoes he would have wanted an apology. Eventually Bodger accepted that he would return to site if he received what was due, gave an apology, but that any police action would have to be dropped.
With Bodger's permission this was conveyed to Planit who agreed thus far but a difficulty remained as to what the amount due might be. This was resolved when it was discovered by the Mediator that Bodger had a high regard for the abilities of Mr Stitchemup and a joint valuation between Bodger and Stitchemup was agreed, as was its timing. The Mediator rehearsed precisely what had been agreed before each party separately and then asked them if there was anything else that should be addressed. Nothing further arose and the parties were brought together for a formal agreement to be settled.
During questions it transpired that it was thought quite often to be better if the Mediator has no expertise in the actual subject matter of the dispute, although views on this seemed to be mixed. At the outset the parties are usually informed of the period that has been set aside for the process. It was thought a good idea for the Mediator to meet the parties separately before the process started.
The importance of maintaining absolute even handedness between the parties could not be emphasised enough. Two mediator training bodies were mentioned: The CIArb and CEDR. Apparently the former suggests that the joint part of the process be continued as long as possible whereas the latter recommends moving to the caucus phase much sooner. Those mediators who attended seemed to prefer the former view.
All in all a star performance, particularly by David Simmonds at short notice, and one which demonstrated the effective way that a mediation can bring about a creative solution to what at first blush seemed an intractable mess.
Reported by Philip Fidler