Hard day's night

The following "day in the life" account tells of a dispute between an employer and a turnkey contractor, in which we are acting for the latter - the defendants. The dispute concerns work allegedly carried out contrary to specification under a turnkey construction contract. Trial in the commercial court is due to commence four weeks after the mediation.

7.30am Both teams and the mediator assemble in a large conference room. After introductions, the mediator informs the parties that he expects each to open with a brief statement of its position.

The employer's representative reads from a document, no doubt prepared with the help of his legal team. After his 20 minutes are up, his opposite, defending number has his say.

The mediator then invites the parties to discuss the points raised so far. After an hour of lively debate, it becomes apparent what the main issues will be for the day.

9am The parties retire to separate rooms, where the mediator talks to each in private. Initially, there is a reluctance to be open with the mediator, but after several sessions, the team members overcome their reticence.

11.30am The plenary session resumes, with each side giving presentations to the other on points that have arisen in the earlier session. An hour or so later, proceedings adjourn for lunch, which, on this occasion, the mediator decides both sides will have together.

2pm After lunch, the mediator encourages both teams to try to formulate proposals for settlement of the claim. A couple of hours later, the contractor's team comes up with a proposal providing some benefit to the claimant, and this is put forward in a resumption of the plenary session. At this point, the momentum increases noticeably. Now there is some money on the table: not enough money as far as the claimant is concerned, but it is prepared to discuss the proposal and come back with a response.

5pm After a half-hour session with the mediator, who encourages the claimant to produce a meaningful response, the team delivers a counter-proposal. Not an acceptable counter-proposal, but at least the contractor's team has something it can consider. There follows a lively exchange of views on the relative merits of the proposals.

6pm The mediator calls a halt, sensing that there is an impasse, and the teams retire to their breakout rooms to consider their positions. The mediator then calls them together to eat dinner.

7.30pm During dinner, the commercial leaders of both teams decide they would like to have a private discussion without their colleagues present. This discussion goes on for some time.

8.30pm The two team leaders return and the teams retire to their rooms. Each team is briefed as to the outcome of the private discussion. The leaders have managed to narrow the gaps, but certain tricky commercial issues remain, not least the amount of the payment to be made.

9pm The plenary session resumes. The claimant side insists that it will not budge from its last position. The atmosphere in the room becomes less positive and the teams again retire to their private rooms. The mediator needs the defendants to pay a higher figure, or he needs the claimants to accept a lower figure, or both.

The employer's team leader obtains the agreement of his team to a reduction in the demands made, but not an acceptance of the most recent offer put forward by the defendant. A further plenary session follows in which the revised position is explained and discussed.

10.30pm By the time this session finishes, the defendant feels that the claimant's position is not so unreasonable, leaving just a few details to sort out on the terms of any agreement. The mediator advises that the defendant should consider giving more ground, in light of its exposure if the matter went to court. A debate ensues with the mediator as to the strength and weaknesses of some of the merits of the defence.

11.30pm The defendant feels it has enough understanding of the terms of any settlement to enable it to make a final offer to the claimant: it is accepted.

But that is not the end of it! A member of the claimant team is asked to set down in writing the terms that he and his team think have just been agreed. A draft appears, which the defendant team finds requires some rewriting.

1.30am The plenary session resumes with the benefit of a revised draft.

3am The team leaders find themselves able to sign an agreed document recording the terms of the agreement. An exhausting and at times frustrating process, but well worthwhile.