David Richbell FCIArb (Mediation)

Commercial Mediator & ADR Specialist

David’s experience in all sectors of commercial mediation with case examples:


Construction & Engineering

book cover


Wrote the award-winning book “Mediation of Construction Disputes” which was published by Blackwells in 2008 and is aimed at users( parties and lawyers).


Numerous domestic construction disputes, usually over delays and/or quality of work. Most have contained a high degree of emotion. Cases have included:

Non-performance of heating design and installation and provision of as-built drawings.

Imperfections in stone flooring to luxury apartment. Dispute mainly over what is acceptable variation in colour and veining in a natural material, but also workmanship.

Landscape garden schemes where aspirations and reality have not coincided.

Many disputes due to non-payment of (final) invoices.

Structural settlement on house built on an embankment edge.

Construction contract disputes, usually over loss and expense, disruption claims and/or valuation of variations. Often include professional negligence dimension. Cases have included:

Refurbishment of hotels, factory/offices.

Out-of-town shopping centres.

Hospital complex.

Joint-venture waste management project.

Breakdown of term contract for maintenance of Housing Association estates.

Defective work on housing stock for Local Authority improvement scheme to public areas.

Inefficient novation of contracts from Employer to Contractor.

Land defects on warehouse project and on garden centre greenhouse construction.

Structural settlement resulting in claim on Design and Build Contractor.

Civil Engineering projects, usually over delays and disruption but some on performance and others on defects. These tend to be very high value cases and include:

Airport runway construction defects. Some concrete crumbling, causing safety hazard. Dispute mainly over extent of remedial works (patching or total replacement or overlaying with a different material).

London Underground tunnel refurbishment where critical tolerances on bends were exceeded, causing potential danger to trains travelling at speed.

Sea-borne sewer installation in Canary Islands. Involved undersea blasting.

Large petroleum and gas-processing plant in Asia. Dispute partly over missed completion date but also about output not reaching predicted levels.

PFI Incinerator project for large hospital. Plant disposed of hospital waste, provided heat for buildings and revenue from recyclable waste. Predicted levels of heat and revenue not achieved.


Employment & Workplace

These are usually highly emotional and challenging disputes but settlement often means some form of reconciliation. Some cases had Trade Union involvement. Cases mediated include:

Defamation suit made by a TV presenter against a national Broadcasting body. Chief challenge in the mediation was the management of the claimant’s expectations to a level where settlement became impossible.

Wrongful dismissal claims by three female traders against a commercial bank that was downsizing.

Wrongful dismissal claim by university lecturer sacked for gross misconduct.

Sexual harassment claim by senior employee against departmental colleagues.

Bullying claim by senior employee against departmental Director.

Renegotiating role of Chief Executive of a national charity who had been promoted beyond his ability.

Claim against former employee for promoting own business in firm’s time prior to leaving and setting up competing business.

National Church dispute where Minister exceeded employment brief and caused division within local and national church.


General Commercial Mediations

sectors mediated with typical case examples:

Armed services.

Navy destroyer: sophisticated electrical installation.

Flight simulator: Dispute over specification changes and equipment provided.

Land sale: Former MoD land, remedial works and planning use.

Ammunition for automatic weapons for riot control.

Agriculture

Milking parlour: Farmer purchased rotary milking parlour that became faulty and crushed some cows.

Foot and Mouth: Several claims by contractors on Defra (as then known) for compensation, carcass incineration, plant and security.

Family dispute over ownership of farming business.

Claim for contamination of herd by stray cows from adjoining farmland.

Business and Partnership

Many disputes involving the non-payment of invoices.

Dispute over valuation of ‘goodwill’ in take-over some year or so before.

Valuation of share of family business, one sibling attempting to buy the other out.

Company liquidation mediating debtors settlement.

Computer software and servicing contract default.

Medical Partnership break-up. Primarily a dispute over share of assets.

Structural Engineering Practice dispute where younger partners in conflict with founding partner, particularly over expenses and entertainment allowances.

Charities, Trust & Probate

Chief Executive of a large charity promoted beyond maximum effectiveness, causing fragmentation of staff and operations. Restructuring allowed him to work in an area of choice and maximum comfort.

Contested will where first wife excluded, despite being mother of the only children.

Contested management of a trust when the beneficiary came of age. Partly a challenge over the trustees investment strategy partly because the beneficiary had a destructive relationship and the trustees were concerned about the trust money becoming the property of the beneficiary’s partner.

Faith Communities/religious disputes

Another area of high emotion where mediation is absolutely the right process but where solutions are difficult to achieve. Disputes mediated include:

Synagogue divided by radical rabbi.

Dispute between founders of a mosque and the (younger) management committee over the running of mosque activities.

National Church dispute where Minister exceeded employment brief and caused division within local and national church.

Use of redundant church buildings intended to be converted into a public house.

Unplanned amalgamation of URC and Scottish Presbyterian churches, causing disputes over use of buildings and styles of worship.

Hindu business conflict between members of same community.

Families at War

These can be some of the most emotional and upsetting (even for the Mediator) cases and often the most difficult to settle. A few examples:

Contested will where first wife excluded, despite being the mother of the only children.

Son trying to evict aged step-father from deceased mother’s home.

Daughter suing father over access to trust funds. Father in tears over breakdown in relationship.

Muslim family business where one brother was being excluded by the others. Counsel did not help by trying to insist that the brothers did not all meet together.

Gay former couple fighting over ownership of a fitness club. Claimant brought his new partner to the mediation.

Brothers fighting over control of farming business. Elder brother dominant personality, younger brother (actually it was his wife) took a stand which led to one buying off the other.

Finance & Banking and Franchise

Several disputes over valuation of business assets, some in connection with purchase of business, others in splitting the business or in connection with management buy-out, others in valuation of shareholding.

Video and other media forms through telephone line. Business failed because telephone company could not deliver the transition equipment to keep pace with the ‘sign-ons’.

Company Liquidation mediating debtors settlements.

Computer sales franchise.

Cafe chain franchise. Business plan not achieved, claimant alleged misrepresentation by franchisor.

Interest and financing charges on large international infrastructure project.

Lorry leasing contract where the lessee alleged faulty goods and the leasing company alleged default on payments.

Intellectual Property Rights, IP and Trademarks

Patent royalties dispute for automatic weapon ammunition.

Trademark infringement on drinks packaging.

Dispute over packaging of household goods, seen a ‘passing off’.

Patent infringement of trigger mechanism for spray product. Involved multi-national companies with patents in various jurisdictions.

Insurance and Professional Negligence

Dispute between insurer and garage chain that had preferential status but which was downgraded due to failed audit.

Dispute between insurer and washing machine warranty contractor over excessive replacements rather than repairs.

Dispute over Engineer’s incorrect boundary line to new hotel site causing redesign and abortive construction in critical area of site.

Numerous Solicitor negligence claims, usually on wrongful advice, some on incorrect or unco-ordinated documentation.

Numerous Architect negligence claims, usually by Employer over unworkable design, poor supervision or costs arising from delays in design.

Several claims on Valuers for ‘incorrect’ valuation on properties in a falling market, making business plans unworkable; or in a rising market by vendors who want more than their sale produced.

Market deals cut between insurers/re-insurers

Marine and Motor Industry

Garage chain in dispute with insurers over motor repair charges.

Prototype car for mass production company. Damages claim for missing deadline for Motor Show. Counterclaim for failure of software monitoring system.

Dispute over yacht specification and defects. Used for charter cruising in the Mediterranean and had special features (which affected its stability).

Paint spray operation (Co-Mediation). Primarily a construction project but also an exercise in maintaining a dust and dirt-free production line whilst constructing a new spray housing and baking plant over the existing plant.

HGV warranty claim.

Decentralisation of parts, storage and distribution for engine manufacturer.

Oil Industry

Construction of (then) largest oil-rig in the world. Part final cost on several modules, part quality of work. Some modules transported by sea with work still under way (Co-Mediation)

Trespass and royalties claim for oil extraction from below another’s land. Land owned by arab businessman who claimed oil revenues and claimed angular drilling from adjoining land constituted trespass.

Oil and gas extraction, processing and refining plant in Asia. Outputs did not meet predictions and Oil company claimed damages from contractor (Co-Mediation).

Personal Injury

All cases involved insurance companies and include:

Whiplash injury following a road accident.

Incapacity due to knee damage playing squash.

Level of care in home for totally disabled patient who insisted on female only carer.

Claim against contractor and insurers for serious injury resulting from collapse of factory roof. Workmen ignored warning notices.

Property

Many boundary disputes. These are probably the most emotional of all disputes and the best results involve the restoring of neighbourly relationships. Most settle on an agreement of a (new) boundary line and some money being exchanged as a result.

Land remediation scheme for proposed housing development.

Dispute over dilapidations schedule to warehouse and factory premises.

Rent arrears and dilapidations to office premises.

Dispute over service charges and inefficient management of a block of flats.

Rights of way and rights of parking.

Rights to buy.

Dispute arising from ‘wrongful advice’ in the purchase of an investment property at the height of the property boom. Property worth less than purchase price and investment company faced bankruptcy.


Public Sector and Utilities

Failure of commercial electricity supply to large manufacturing complex caused disruption to production line. Multi-party dispute involving incorrect equipment as well as power failure.

Fractured main sewer during piling works. Sewer line not in position shown on utility drawings.

Late completion of extension to prestigious Local Authority owned Theatre. Huge public embarrassment.

Hospital Trust new high-level care unit where air conditioning system failed to perform to specification.

PFI incinerator project for large hospital. Plant disposed of hospital waste, provided heat for buildings and revenue from recyclable waste. Predicted levels of heat and revenue not achieved.

Various construction projects for Housing Associations, Local Authorities, Hospital Trusts.

Sports

Another sector where on-going relationships are common and so mediation helps to restore relationships that have been fractured by dispute. Disputes include:

Football dispute (Co-Mediated) over ownership of club threatened with relegation from the football league. Also dispute over sale of ground and lack of replacement. Settled over five days and club avoided relegation.

Boxing dispute involving world title fight contender and manager, mainly over purse share but also status and benefits. New contract negotiated. Boxer lost elimination bout and became radio commentator.

Rugby Union dispute over ground sponsorship and display of advertising.

Bowls club dispute over management and over status of female members.

Telecoms

Breakdown in strategic Partnership Agreement between international telecoms provider and national network company where guaranteed minimum traffic not achieved.







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“[David has been recognised by clients for] displaying a calm, courteous and impartial approach to the process which [undoubtedly is] a major factor in enabling a settlement to the dispute to be reached.”

“[He will always find] a way through a deal breaker to enable substantive discussions to commence.”

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