Who prepares wins

Until recently, my experience of mediation has been limited by its relatively slow take-up in the construction industry. But it does seem to be getting more popular, mainly due to the civil procedure rules that force parties involved in litigation to address the mediation option.

For my part, and with my clients' best interests in mind, I would be foolish to ignore the benefits of successful mediation in terms of saved legal costs and management time. Nevertheless, for the process to succeed, the right conditions must be in place.

The absence of those conditions no doubt explains the huge contrast between the successful outcome of the first of my recent mediations – a multimillion-pound, multiparty dispute (25 January, page 47) – and two others.

The contrasting results were surprising since, on the face of it, mediation seemed much more appropriate for the two more recent disputes. Rather than being a multiparty dispute, both involved only two parties and neither involved insurers.

But in many respects, the disputes could not have been more different. The first involved a substantial domestic refurbishment project. I was acting for the contractor, who was pursuing a claim against the employer for unpaid cash and who was faced by a counterclaim for defects. The second related to a commercial development in which the contractor was pursuing a claim for extension of time and substantial loss and expense.

In both cases, an extremely experienced mediator was appointed and the process took the best part of a day. The mediator in each case, no doubt as a result of the different nature of the disputes, adopted substantially different approaches. In the residential dispute, most of the day was spent in all-party meetings in which the mediator sought to explore in detail the relative strengths and weaknesses of each party's case. This flowed from the mediator's perception that, in a dispute arising out of building work carried out within a home, feelings are likely to run particularly high. However, in trying to give the employer the chance to get things off his chest first, the mediator unwittingly paved the way for a slanging match in which both he and I found ourselves on the receiving end.

In a dispute arising out of building work carried out within a home, feelings are likely to run particularly high

Suffice to say, the parties never got close to discussing figures. They ended the day considerably further apart than at the beginning.

My suspicion is that the employer entered into the process with no intention of making a significant movement towards settlement. Rather, the employer was using the process simply as a means to persuade the contractor to accept his own evaluation of the account. In those circumstances, there was little chance of the process working.

The problem was rather different in the commercial dispute. Following a relatively short all-party meeting, most of the day was spent in fairly intense private meetings with the mediator, in which he worked hard to construct proposals by which the gap between the parties might be narrowed. But the case had already been through three-and-a-half years of arbitration, and had been suspended for mediation to take place, so that gap proved just too great to bridge within one day. Even the mediator was surprised at how far apart the parties' assessments were of the competing risks.

When I wrote about the first of these three mediations, I emphasised how important the preparatory work was. This was done by the parties in a series of pre-mediation meetings. Sadly, with the more recent cases, it had not proved possible for an equivalent series of meetings to take place, which meant there was too much work to do on the day to make a successful outcome possible. Had that been done, things might have been very different.