PARTIES THAT WONT PARTICIPATE

PARTIES THAT WONT PARTICIPATE

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

16 February 2021

You have accepted an appointment as a mediator in a dispute between directors who have fallen out. There are three directors – two on one side and one on the other. The dispute is proceeding to court. There is a requirement to mediate. Your terms of appointment have been agreed. Both sides put in statements summarising their position. A date is set for a mediation – the venue is selected and everybody turns up.

Well sort of. The defendants – two directors – arrive but one of the two informs you that she will not take part in the mediation. There is still a mediation to be had but with only one director on each side. But the non-participating director is clearly an important figure and much of the difference between the two sides centres on her role.

What do you do? Complain that the non-participating director is putting the mediation in peril. Or, disregard her and go ahead with the One v One.

An interesting dilemma for you as the mediator. There is still a mediation. The parties on both sides are represented. Yes, one director has decided not to participate but you can only guess as to her reasons. She may have had a late falling out with her fellow director or she may have lost her nerve or she may be ill. Whatever, if the two remaining directors want to proceed are you able to do so?

The key question is to what extent the remaining director – the one whose fellow director is sitting in the next room mute – can bind the non-participating director if any agreement is reached with the sole director who is keen to give the mediation a try.

What do you do? Do you foresee trouble down the road and pull out? Or do you take advantage of the presence of the one director each and go ahead. Or do you decide on your own initiative to speak to the non-participating director on her own – if she will allow you to do so – to enable you to understand the problem?

You have been paid in advance for a two-day mediation – so you are in funds. But where is it leading? What do you do? Your views are welcome.

“Graham Perry”

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