THE FLEXIBILITY OF MEDIATION EPISODE 3

Lawyer

Written by Graham Perry

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

7 August 2021

ARBITRATION #151

Episode 2 concluded.
“It so happens that two of the three lawyers were friends from Law School days. They start to discuss and the third lawyer joins in.”

The First Lawyer speaks; “The Police investigation concluded that the deceased Husband had no responsibility for his death. He was not speeding. He was not driving with excess alcohol. Eyewitnesses confirm that the front driver’s tyre suddenly punctured. The car veered off the road + into a tree. The Husband was dead when the medical staff arrived. The police have ruled out road conditions as a cause + no nails or like items were lodged in the tyre or have been retrieved by a road search. Our three experts conclude that the cause of the accident was either a faulty installation of the new tyre or a fault in the recently installed tyre itself or a design fault in the wheel itself.”

He continues; “I want to suggest that we have two separate mediations. First, we try to reach a settlement with the Wife with each of us paying one-third of the finally agreed compensation. Second, and separately, we three lawyers mediate the issue of liability between our three principals. Let’s not delay the wife’s entitlement to compensation. She has suffered enormous emotional pain – let’s recognise that and see if we can agree on a sum with her in mediation. Thereafter we can argue amongst ourselves as to which one or more of us has the responsibility to meet the principal sum.”

Mediation offers this flexibility. A mediator is appointed, first to mediate the claim with the Wife and second to work out the responsibility between the principals.

Creative thinking comes from active listening.

See the line-up of forces; take the issues in stages; caucus with the Wife and then with the three principals together and try to secure a settlement. Then go on to the next stage with just the three principals, caucus with them individually and with their experts and also master the detail of the three expert’s reports. The essence has been addressed. Progress has been achieved. Mediation Works – not always but it has much to recommend.

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