Last week I participated in Practical Law’s breakfast roundtable, Using mediation to resolve your construction dispute – why and how?. The roundtable was led by Rosemary Jackson QC and Elizabeth Repper, barristers and mediators at Keating Chambers.
As I said when I wrote about the last breakfast roundtable on liquidated damages, while Chatham House rules do not permit me to reveal all that was said, what I can tell you is how enjoyable the session was.
The session started with Rosemary setting the scene and explaining mediation from her perspective, as a mediator. Two points she made struck me:
- Consider having a pre-mediation meeting with the mediator, to explore what it is the parties expect and want (and don’t expect and want), to determine what type of mediation it will be (facilitative or evaluative) and to discuss any other issues that means time will not be wasted on the mediation day while the ground rules are established.
- Choose your mediation team carefully. By all means have people involved in the project (the “baggage men” as Rosemary called them), but try to have a decision maker who is detached from the project, who can see the bigger picture. Avoid large groups of people at the mediation, as this can have a negative impact on decision making. Counsel are welcome, but under advisement, as are partners in charge of matters or client partners, but be aware that having a limited grasp of the issues in the dispute can undermine the decision-making process.
Thereafter, Elizabeth took the lead and ran through a number of issues, such as:
- The timing of the mediation, and whether it is appropriate to mediate pre-issue, bearing in mind the costs of issuing a claim, which were increased earlier this year (and may go up again).
- The Practice Direction on Pre-Action Conduct and its increased emphasis on ADR.
- The courts’ approach to proportionality in cases such as Savoye v Spicers and CIP v Galliford Try, and its approach to ordering a stay of proceedings to allow the parties to mediate (Bradley v Heslin and CIP v Galliford Try).
- The cost consequences of failing to mediate in cases such as Garritt-Critchley v Ronnan and Northrop v BAE.
Once the law had been set out, the room was divided into small groups. Each group worked through a number of example scenarios with Rosemary and Elizabeth’s assistance, feeding back their thoughts on issues such as whether a party could refuse to mediate, whether it was too early to mediate and how to advise a client who does not understand the purpose of mediation.
These workshops are a fantastic opportunity to receive practical guidance and work through the challenges and issues that everyone faces, and to meet and network with industry professionals. They are provided by Practical Law’s online learning solution at legalpd.com.
If you missed this session, the slides are available here.
