A case where I was acting as the respondent’s mediation advocate concerning early termination of a tunnelling contract which was mediated in London between Thai and British parties. 

At the end of Day 1 no result was achieved and the parties’ positions had not altered. A further day showed some movement from the Claimants reducing their claim from £30 million to £12 million. Subsequently the respondent party counter offered £1m representing allegedly its legal cost for a short arbitration. The mediation failed to resolve the matter at that point. 

The Mediator solicited and obtained promises from the party representatives to telephone each other alternating between the initiator of the call. After 10 days I received instructions to make a full and final offer of £2,89 million which was accepted. 

Key take away

Mediation empowers parties to think differently about how to negotiate. If the parties do not settle on the day, often the matter settles shortly afterwards.

This was a Dispute between Employer and Contractor on a Middle East Mega Project with over US$1bn in dispute provoked by the usual variation, liquidated damages and failure to issue an extension of time trinity. 

The mega project was delivered 5 years late at 3 times the original cost. The parties were a government related employer and a locally led foreign joint venture of notable construction companies.

The construction contract would never have been a candidate for a clarity and precision prize and in fact had not been signed until 4 years after construction had commenced and was 65% complete. Some 15 nominated contractors had performed 80% of the work with or without a contract and disputes were legion and rife. Neither the contract nor numerous letters of intent reflected the actual way in which the contract had been administered and the difficulty was finding a straight edge to measure the performance and conduct of the parties for reason and right. It was clear the route of all problem was immature design and the sheer volume of changes, requests for instruction and undocumented instructed changes. 

Local Courts and Local Law were mandated to resolve disputes but were not noted for precedent in dealing with complex engineering claims where the documents exceed 5 million pages (including drawings) – all in English with the local courts working in Arabic.

I was appointed as lead mediator to manage a mediation team of an initial team of 10 professionals including engineers, surveyors, commercial people and planners to unravel and solve the mess which had been created. Ultimately the team was to expand to 23 persons and include architecture, piling and other engineering disciplines in an evaluative mediation which took over 19 months to complete. 

It was agreed after many preliminary meetings that the dominant cause of delay was multi site and nonlinear programming with 30k average daily activities recorded in planning schedules. The risks were ill defined in the contract with serious shortcomings in Contract Administration on all sides. Records were becoming difficult to obtain vague or unavailable some 7 years now after the commencement of works and the final account TOC was still in debate 3 years after beneficial use. Some US$ 3bn had been paid (mostly on account) US$ 4bn was claimed (mostly unsubstantiated).

The evaluative mediation was conducted via a straight edge analysis tool all parties could agree on. 

Key take away

The parties were forced by circumstance to talk to each other and despite some rough relational patches the parties found resolution and settled the dispute at month 19 of the evaluative mediation process. The parties then went on to work together on an extension project. A successful resolution.

This case involved a South Asia Main Contractor and a Japanese Construction Company as Subcontractor for a major element of the Works. The parties had both a history and a future of working together globally. 

The sum of US$60m was in dispute on a Middle Eastern project which had been suspended. Arbitration had been threatened by both sides but not yet activated. Before the mediation could commence there were a series of practical steps to be taken. 

I retired to a breakout room with the two chief executives to reconcile cultural issues and give them some instruction on how matters were to proceed. Each was then allowed time for a team talk to create awareness between their teams. Party A fielded a team of 19 mostly flown in senior executives and presented their case over the course of the rest of the day. Party B was the local team and boss and presented over 4 hours the following day. The mediation was halted on day three by me after offer and counter offer were too far apart to bridge. 

I called a final meeting between the two decision makers which lasted over 3 hours but did not produce a narrowing of positions. I asked the two decision makers to remain in contact and call each other to discuss the football weather or whatever on at least a weekly basis and wished them luck. 

Key take away

Two months later the dispute had settled. I regard any positive settlement within 3 months of a mediation meeting a success, particularly for the parties.