The art is not in having a willingness to settle (in fact the court looks very coldly upon a party that is not willing to at least try) but in knowing when and what to offer.
There are two purposes to negotiation:
- If a deal is done (particularly at an early point) the dispute is over and costs are normally reduced; &
If a deal is not done, however, the parties have two points to carry forward:
- they undoubtedly know more about each other’s positions; &
- if an offer was formally made and rejected, should the opponent not beat that offer at trial, you can secure costs protection.
Negotiations can take many forms, from the Managing Directors having a meeting, to written offers (especially necessary to secure costs protection), to the mediation process.
Mediation can seem alien to most. The parties enter separate rooms, the mediator shuttles between them carrying arguments, evidence and offers (but not his own opinion). The day often turns into a late night and the parties find themselves signing agreements hastily written in the middle of the night, respectively thinking that they have settled too low or paid too high.
In mediation, we help you by presenting your position succinctly and forcefully and by answering your opponent’s position clearly. We understand your commercial position and the risks (the best case/worst case or the pain/gain analysis of the case).
We ensure that you leave with a deal that suits you or, if no deal is done, we do all that we can to secure your costs position going forward and to use our newly gained understanding of your opponent’s position.
If we can assist you in any way, or if you simply want to discuss the needs of your construction and engineering project, we would be delighted to meet with you either in our office or at your office to discuss your issues. Please contact us at any time.