Mediation

Mediation is about creating solutions that work for the parties. It works because the parties are able to think creatively about what works for them rather than being constrained by the remedies a court can award. It removes risk, stress and costs. No wonder it has been growing in prominence as a dispute resolution method for many years and is now an essential part of a litigator’s toolkit.

At Maitland we have a lively and vibrant mediation practise with 5 mediation accredited barristers practising mediation and many more routinely acting for parties in mediations.

We understand that to be effective mediators we need not just to have a firm grasp of the legal principles and commercial reality but also to offer emotional intelligence and flexibility so as enable constructive engagement and negotiation to take place and a successful resolution to be achieved. Our members are able to supply not just the usual mediator skills of facilitation, but also the specialist knowledge and experience which enables them rapidly to grasp both the legal and commercial issues arising in the dispute and to engage in appropriate and active reality testing with the parties.

Mediation is not just about the meeting. Our mediators are keen to give the parties the best possible chance of achieving a successful settlement and so ensure that we have thoroughly prepared both by reading the papers and by speaking with the parties’ advisers well in advance of the meeting. That first contact with the parties’ advisers is invaluable in ensuring that our mediators have a proper understanding of what drives the dispute, over and above the parties’ respective legal positions.

On the mediation day, you can expect empathy tempered with realism based on the commercial and legal circumstances of the dispute. Whilst we work hard to assist the parties in reaching a settlement on the mediation day itself, we are proactive in helping the parties agree a roadmap for future settlement discussions if it doesn’t settle on the day. You can expect our mediators to keep in touch with the parties’ advisers and suggest a variety of further strategies to keep the dialogue going and to keep settlement opportunities alive.

Expertise

Our mediators undertake mediation work in a wide variety of sectors and legal areas both domestically and internationally including, banking and finance, commercial contracts, construction and engineering, insolvency, professional negligence and real estate. One of our members is called to the Bar in Hong Kong and therefore can mediate there. Another has additional experience derived from previously being a Partner in a leading City law firm.

Examples of the types of dispute we mediate in each area can be found below.

Banking and finance

We have experience in and a deep knowledge of a wide variety of banking products and we are alive to how disputes arise out of them, particularly in times of economic turbulence and regulatory change. Examples of our mediation work in this area include:

A dispute between a bank and a debtor concerning alleged breach of conditions of a large loan
A dispute between a bank and a corporate where a large sum of money had been appropriated by a fraudster
A dispute between an NHS Trust on a variety of disputes with its PFI provider in respect of the payment provisions of the project agreement

Commercial contracts

We routinely work on disputes arising out of joint ventures and commercial partnerships, and a wide variety of breach of contract claims. Examples of our mediation work in this area include:

A dispute between a service provider and its client over unpaid fees and over repudiatory breach of contract
A dispute between a main contractor and employer in a building contract for unpaid invoices with a counterclaim for defective work

Construction and engineering

Construction projects are complicated and time sensitive. Although adjudication is available for some types of dispute in this sector, other types can not be resolved in this way and, in any event, mediation provides a more flexible tool for resolving a dispute in a way that preserves an ongoing relationship. Examples of our mediation work in this area include:

A dispute between a corporate occupier in a breach of warranty claim against the contractor who built a Regional Head Office building for defective cladding to the exterior walls
A dispute between a tenant of a large office building and a landlord who had given warranties as to the state of repair of the premises but where the butt welded joints in the air-conditioning system were defective

Corporate

We work with private equity houses, and corporates of all sizes covering many different types of dispute. Recently we have mediated disputes relating to:

Minority shareholder prejudice claims
Joint venture/partnership disputes, including with an international aspect

Insolvency

Liquidator claims including professional negligence claims, and voidable transactions

Professional negligence

Negligence claims are always difficult for both sides with issues of trust and reputation being important to the claimant and the insured and a variety of legal issues needing to be addressed before an insurer is likely to be minded to pay on a claim. We routinely mediate such disputes with recent examples including

A dispute between environmental consultants and a housebuilder for an allegedly negligent mining search which caused loss to the housebuilder in a substantial development
A claim against a valuer for over valuation of a multi million pound property portfolio

Property

At Maitland, real estate work is a strength and we mediate on a broad range of different real estate disputes every year. Types of dispute include, landlord and tenant, sale and purchase, neighbour disputes as well as financing disputes of various types. Examples include

A dispute between a freeholder and a publican concerning terminal dilapidations, 1954 Act statutory compensation and a disputed rent deposit
A dispute between the owner of a substantial residential property and a neighbouring business concerning rights of way and trespass. Settled by several land swaps, the grant of a right of way and a financial payment

Trusts

We deal with a wide variety of trusts related litigation from large and complex off shore trusts, through probate disputes to claims arising from implied trusts. Recent examples include:

A claim for negligence and breach of contract against an offshore trust, including a dispute over trustees fees and a complicated tax structure
A claim concerning the beneficial ownership of land which was said to be different from the legal ownership

Further information

We are very happy to discuss with you providing bespoke training to groups of solicitors on the mediation process. Please contact our Clerks or Head of Marketing to discuss this further.