Civil Mediation

Having qualified practised first as a Barrister and then as a Solicitor, I have wide experience of civil disputes in and out of court.

As a mediator I am privileged to have helped resolve a wide range of difficult expensive problems.

How Mediation Works

I have mediated personal injury claims, professional negligence cases, matters between landlord and tenant, contested wills and intestacies, partnerships, commercial business sales, even intellectual property disputes.

Sometimes with solicitors and QC’s; other times just 2 individuals with no representation apart from friends or spouses. Every time is different, BUT every time the same very simple process -

  • Confidential mediation agreement
  • Send a position statement and supporting papers to the mediator
  • Come along to the mediation meeting, and explain your point of view
  • The mediator has a series of private, confidential meetings, separately with each side
  • Negotiations start to develop, achieve momentum, and a deal is outlined
  • Draw up and sign a binding, final, enforceable settlement contract

My Approach

  • Seek to understand every point of view in the room
  • Get to know all the facts; as far as possible.
  • Ensure everyone gets heard
  • Ensure each party understands its own needs and interests
  • Move the argument from positions to interests
  • Explore the best and worst alternatives to settling
  • Be creative, think laterally.

Case Studies

Supreme Court restores the normal rules for Liquidated Damages

Triple Point Technology vs PTT.  BLM (2021) 556, UK Supreme Court

Facts

PTT was a commodity trader and Triple Point was a software designer.  In February 2013 PTT contracted to pay Triple Point $6,900,000 to design and supply a sophisticated software program to support its commodity trading business.  The contract provided for liquidated damages of 0.1% of the value of unusable or undelivered works from the due date to completion.

The parties fell out over payments and performance, then in March 2015 PTT terminated the contract with Triple Point for non-performance.  Triple Point sued for outstanding payments,and PTT counterclaimed for (1) Liquidated Damages (“LD’s”) for delay to the date of termination and (2) general damages  from that date for the extra cost of getting the work completed by others.

Court rulings

The High Court ruled that PTT were right to terminate, and awarded LD’s from contractual completion dates to termination, and general damages for cost to complete thereafter.

The Court of Appeal however ruled that on the wording of the Contract, LD’s were only due on items or stages of work that had been finished as at termination.  Anything incomplete was not covered by the LD’s provision.

The UK Supreme Court over-ruled the CA, saying it was “inconsistent with commercial reality”. PTT was awarded LD’s on all work that was late, up to the date of termination, and damages for the cost to complete thereafter.

Comment

This is a very welcome decision which has restored how we all understood Liquidated Damages clauses to work, i.e. that LD’s apply from the contractual completion date to termination, and general damages for cost-to-complete apply thereafter.

At paragraph 35 of her judgment, Lady Arden in the UKSC robustly dismissed the Court of Appeal’s ruling  as inconsistent with commercial reality and with the accepted function of LD’s.  She noted rightly that parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event (here, as often, that event is a delay in completion). The employer does not then have to quantify its loss, which may be difficult and time-consuming for it to do.

She insisted that when interpreting what parties meant by their contracts, they must be taken to know the general law, namely that the accrual of liquidated damages comes to an end on termination of the contract.  After that event, the parties’ contract is at an end and the parties must seek damages for breach of contract under the general law. Consequently, parties do not have to provide specifically in their negotiations for the effect of the termination of their contract. They can take that consequence as read.

Dilapidations claim on licensed premises, featuring 4 warring experts, extensive technical arguments, and deadlocked negotiation. Online (Zoom) Mediation was tried as last resort to court action and settled to both parties’ satisfaction.

Commercial property dispute – contentious £3,000,000 valuation of the acquisition fee for residential redevelopment of farmland, complex legal challenges to interpretation and validity of Option Agreement, and conflicting expert evidence.

Intestacy dispute between a second wife (the widow) and children of the previous marriage; the parties could not and would not meet each other, but eventually were helped to find a compromise and resolution, despite very deeply held emotions.

Inheritance dispute over contested will between six brothers and sisters in a farming family where again the parties felt so strongly that they would not meet in a common session, and freely accused each other of fraud.  Successful agreement concluded after a very long session.

Long-running, and bitter professional negligence claim between a businessman and his commercial property solicitor.  The Claimant was a litigant in person who became very frustrated and repeatedly threatened violence.  Settlement and closure was eventually achieved after numerous walk-outs.

Solicitors' partnership dispute where the former partners were unable to speak to each other or even be in the same room, resolved after a close and objective examination of the partners' partnership accounts.

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His advice is always practical and very easy to understand, including the risk surrounding possible decisions. Rob has the skill and personality to explain the most complicated legal point in simple terms.

David Padfield, Director, Jersey Electricity plc.

Rob's deep knowledge of the law and ability to think laterally and creatively made a big difference to our dispute. He puts a lot of energy into the process and kept us going and pushed through to a successful conclusion even when we were sceptical about making any further progress.

Civil Mediation Client

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