New Year is a time for good resolutions – and what could be better than changing the way we think about the settlement of disputes to help benefit good causes. I recently spoke to a businessman who told me how he was involved in mediation and that part of the settlement resulted in a sizeable donation to charity – on this occasion, to the Great Ormond Street Hospital Charity.
Basically, he was a customer of a major bank, in which the employee of one subsidiary that was already pursuing a claim against him in the courts (which was being defended vigorously) agreed with an employee of another subsidiary that he had to settle that claim as a condition of that other subsidiary advancing him funds, which he considered they were already obliged to do.
After the gentleman’s solicitor framed a claim against the bank’s subsidiaries for unlawful conspiracy, intimidation and economic duress, counsel advised him that the prospects of success in Court were less than 10%. Nonetheless, he issued proceedings and quickly ended up in mediation. Whilst he had already resigned himself to not receiving any damages, it became clear in the mediation that the defendant wanted to avoid any embarrassing publicity around what was accepted as the cavalier behaviour of two junior employees and was, therefore, willing to make an offer to settle. After hours and hours of negotiations it became clear the defendant should, simply, make a sizeable payment to a charity being, in this case, Great Ormond Street Hospital Charity.
The funds would be used to pay for equipment desperately need in its cardiac unit where newly born children were undergoing heart transplants. Our storyteller has been through a number of mediations and court cases and found that this particular mediation was, by any measure, the most satisfactory. He wishes that all commercial disputes could end with such a happy story. Certainly, he says, in future mediations, he will happily settle if the defendant agrees to make a suitably large donation to charity.
From speaking to other mediators, it is clear that ‘giving’ as the outcome of a mediation is not as uncommon as one might think, however it is not yet a natural option in mediation settlements, which it might hopefully one day become.