黑洞社区

A passing remark by the judge in this case points to reality and why the mediation went to pot. He mentioned that the parties reached a so-called agreement 鈥渁fter a mediation lasting about nine hours鈥�. That point might explain why, a few days after signing the agreement, one party got the collywobbles and wanted to back out. Let me say, for the umpteenth time: mediation doesn鈥檛 work properly when it drags on interminably 鈥� and nine hours is just that.

Go further: the idea of dragging out the mediation hour after hour is, to some folk (especially old hands), a mean but effective sword in the armoury. Wear the other side out! Don鈥檛 take a break. Don鈥檛 stop for food, nor to sit on the loo. Tiredness drives folk to cave in. I do so wish that the party who wanted to back out had told the judge that he was simply worn down by fatigue. By then he hadn鈥檛 got his head on.

The dispute 鈥� Mr Rajinder Aujla vs Mr Narvinder Aujla 鈥� was about property ownership. The two brothers argued over who owned what. Mediating is much like coaxing someone to believe buying an electric car is sensible. (Or indeed like then prime minister Gordon Brown trying to coax us to believe buying a diesel car was sensible.

Mediation works sometimes, but this one fell over. The arguing pair got in touch with the Centre for Effective Dispute Resolution (CEDR), and along came a mediator on the day set. That鈥檚 when the nine-hour 鈥渘egotiations鈥�, 鈥渘udging鈥�, 鈥渢antrums鈥� and 鈥渢ears鈥� took place. Lawyers attended with the two arguing brothers. At the end of the day, the brothers entered into a written compromise. Brother C agreed to pay Brother D 拢117,500 as part of the overall deal. It wasn鈥檛 paid.

How about 45 minutes, then bring on a tray of oranges and go for another 45 minutes? Then if still no settlement, a penalty shoot-out

Those collywobbles I mentioned saw Brother C allege that his signing took place 鈥渦nder duress鈥�. I strongly suspect that he simply meant he was worn out, fed up, and wanted to go home. After nine hours he 鈥渇elt pressured that an agreement should be reached on the day鈥�. So true: I have seen all that happen in mediation. Anyone holding out is labelled as a nasty piece of work, a trouble-maker 鈥� a pain in the behind.

Days later, Brother C embarked upon another very ordinary piece of human behaviour: he blamed the mediator. That piece of mental agility is just like Blackburn Rovers鈥� fans lambasting the referee when their team loses five nil to Real Madrid. Yes, it鈥檚 the ref鈥檚 fault.

Brother D, kept from his awarded 拢117,500, eventually sued to enforce the compromise agreement. So the brothers faced each other, and spent yet more cash on the same dispute, but this time in court, with solicitors and barristers on both sides. The court had power to vary or revoke the compromise agreement, but only on narrow grounds. 鈥淯ndue influence鈥� is a good ground, if proven. Brother C picked on the mediator. He said the fellow was biased and threatening and overbore Brother C鈥檚 will; he even shut out Brother C鈥檚 legal advisers. Add all that up in the shopping trolley, and at checkout the till will ambitiously ring up duress (hurrah) and undue influence (more hurrah, hurrah). 

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Brother C鈥檚 criticisms met a problem, however. Attending the mediation on the day was his barrister. She gave evidence to the judge in the enforcement and said not a jot about bias of the mediator. But she did say that the mediator 鈥渞aised his voice鈥�. Brother C complained that the mediator did not give him or his barrister the opportunity to make a meaningful opening statement and, worse, did not listen. But the barrister鈥檚 written evidence said, 鈥淚 set out the claimant鈥檚 case to the mediator,鈥� and added that 鈥渢here was some discussion鈥�. In short Brother C鈥檚 allegations didn鈥檛 match his barrister鈥檚 evidence. Nor was there any suggestion that the mediator did not listen or was ill prepared.

Another 鈥渙uch鈥� for Brother C was that this allegedly delinquent mediator 鈥渃ompelled me to make offers I did not wish to make鈥�. Apparently, the mediator warned about the very substantial costs of a failed mediation and going off to court instead. Warned too that certain correspondence to the tax people didn鈥檛 look good. The judge took all this to be only warnings about the risks in proceeding to trial.

As to the mediator raising his voice, I dare say that he too got a tad fatigued by all the hours of back and forth. I identify with that position. As mediator, I once irritably told a party that his case was 鈥渂loody awful鈥� 鈥� only to hear his colleagues rejoice with: 鈥淲e have been telling him that for months on end!鈥�

The bullets aimed at the mediator were a non鈥憇tarter. And all the rest of Brother C鈥檚 case to avoid enforcement failed. But, in my humble opinion, it is a mortal sin to spend a nine-hour stretch in a stressful environment, which mediation is. Perhaps CEDR can have a think about that downside of mediation. How about 45 minutes, then bring on a tray of oranges and go for another 45 minutes? Then, if still no settlement, a penalty shoot-out 鈥� whereupon the mediator announces a verdict. They think it鈥檚 all over 鈥� it would be by then.

Tony Bingham is a barrister and arbitrator at 3 Paper 黑洞社区s, Temple