Last week I was one of the “actors” presenting an hour long mock mediation at our annual construction seminar, and it was a fascinating evening. Having participated in a fair few mediations, I thought that there was probably little that I could learn, but how wrong I was.
Our mediator was Phillip Howell-Richardson, and it was intriguing to see how he seized hold of our messy building dispute, carved it up into digestible chunks and drove the settlement process forward.
Facts of the dispute
Practitioners who are regularly involved with construction claims will recognise many aspects of our dispute. It was about a project that was over time and over budget, with the contractor off site having suspended its works and in the process of enforcing an adjudicator’s award. The employer was claiming that the contractor had repudiated the contract by walking off site, and was claiming damages in respect of the repudiation and the overrun, and for design and workmanship defects. The terms of the contract were disputed, if indeed a formal contract did exist. The reasons for delay were disputed, although excessive changes by the employer, unforeseen ground conditions and exceptionally adverse weather conditions were all cited by the contractor.
To give the mediation authenticity, we had not prepared what we would do beyond making opening statements, although each team had some private facts which were an important influence on their conduct.
What agreement were we able to reach?
Phillip waded into the mess and rapidly divided it up into past and future issues, dealing swiftly along the way with one of the parties who had arrived without authority to settle. The parties were able to come to an outline deal pretty quickly on how their future relationship might work, with arrangements being discussed to get the contractor back on site and also the possibility of future work. This gave everyone a psychological boost before we turned to the more intractable issues of past events and outstanding money!
In one hour, we did not actually reach a final deal, and so we asked the audience to vote on whether they thought that a deal was achievable. Interestingly, the vote was evenly split.
An insight into how a mediator works
What I found most interesting was being party to what Phillip said to the other team, and how he presented offers and information and passed them on from one party to the other. For example, he used inclusive language throughout, “sharing” offers rather than putting them to a party. He put both parties under pressure to test their claims and to categorise them by strength. He also suggested that the parties should escape their lawyers’ clutches and meet privately to try to repair their damaged relationship.
In one of the private meetings, Phillip asked the contractor to get into his helicopter with him and to fly up and survey the dispute from above. This was an extraordinarily effective way of looking at a messy and complicated situation, impartially and from a distance.
Had our mediation continued beyond an hour, I was pretty hopeful that we could have done a deal, but we’ll never know!
