The Perfect Mediation

September 13, 2013
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I did a mediation last week that went like a dream. I’m not going to claim any credit – well not too much! It was the parties and their representatives that made it go so smoothly.

The case concerned two brothers who had bought a house for themselves and their parents to live in. Subsequently one of the brothers married and had children and did various amounts of work to the house. Unfortunately there had been a break down in family relations and, to cut a long story short, they each wanted their respective share out of the property.

One side was represented by a solicitor and the other by a barrister, who knew each other a little. They had a mutual respect and from the beginning worked well together.

Before things really got under way the representatives bumped into each other in the corridor and started chatting. I saw them and invited them into my room to continue. They exchanged some thoughts and some pointers but there was no posturing.

The brothers were not very comfortable about an initial joint meeting and so I suggested that rather than having a grand opening with everyone present, just the two of them might have an initial chat, with me, in my room. They agreed to do this. Although they were reluctant to engage too much and had difficulty making eye contact the meeting did break the ice. Most importantly they both managed to explain to the other what they wanted out of the process: One wanted a fair acknowledgement and repayment of the extra money he had put into the property. The other wanted sufficient information to satisfy himself that his brother had spent what he was claiming – and wanted enough from the process to get a deposit to buy another house. Quite quickly the brothers agreed that the house would be sold and the question to consider was how much each side should get on the sale.

Each brother went back to his room but were then content to have a joint meeting with everyone present where the brother who had done the works went through the documents and gave various explanations, and the lawyer for the other was able to ask various questions about the details. It was straight-forward, business-like and once again no one felt they had to do any posturing.

The parties then split up and considered what had been said. After a bit more toing and froing with each representative being comfortable about going into the other side’s room to ask some additional questions, and the other side being comfortable about receiving them, it was time to consider making an offer.

The first offer was very carefully assessed by the brother making it and his solicitor, having regard to his own needs and the needs of his brother. The solicitor typed up the offer and gave a lot of detail about how it had been calculated, showing clearly where concessions had been made.

I took it to the other room and they carefully considered it. They analysed it, could see that it was a fair offer and did not try to muck about with it. It was accepted.

There were no more offers! Neither side played games!

The representatives then got together, drew up the terms of the Tomlin Order and everyone was out of the building by 4pm. The settlement has not resolved all the issues between the brothers. Nor can I say that it has healed their relationship. Hopefully, it will help them to do so over the course of time.

Gary Webber

(I have obtained the consent of the clients and their lawyers to posting this blog on the site.)


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