Dealing with adversial positions post COVID 19

26th March 2020

Over the last few days I have read a number of articles from law firms, construction professionals and claims consultants on the impact of Covid-19. Unsurprisingly, a lot of these are focussing on contractual and common law rights of parties – with legal concepts such as force majeure, frustration, termination, suspension and others being discussed. There are no easy answers to these questions. I have yet to read an article which does not qualify its opinion with a phrase such as “the answer depends on the terms of your specific contract” or that the “answer will depend on the specific facts and circumstances of your project”. As ever, legal principles put you on a direction of travel but rarely, in my 30 years of experience as a disputes lawyer and now a mediator, have I come across a case where the answer was so clear cut that complete success or vindication was 100% assured.

In the UK, we have a common law system based largely on precedent. This means, over time, the law (via caselaw) provides answers to legal gaps, uncertainty or new events. But here also lies an obvious problem. The law has not developed legal principles to deal with such an extensive pandemic crisis as the one we are currently experiencing. Everyone is trying to look for historical precedent which is either not there or is so woefully out of context that it is of no value. As a society in general, not just a sector like the construction industry, there is no time or practical opportunity to develop the legal precedents to determine what rights, liabilities and obligations arise from the current Coronavirus pandemic.

My worry, based on some of the articles I have read in recent days, is that the Construction Sector will revert to what it often does when things go wrong – become adversarial. I think there is a real danger that a wild west claims mentality could happen! I doubt there is a project in the UK where contractual notices for extension of time, loss and expense, disruption, prevention and even termination have not been issued citing the Coronavirus. Understandably so, by the way, as in most contracts the failure to serve notices in real time is often a bar to future claims. I even read one article this week which was titled “How to win a smash and grab adjudication” in the current climate!

Perhaps an adversarial mindset is inevitable. If that is right, then once the pandemic is over, which it will be sooner or later, there could well be literally thousands of “Coronavirus claims” going to adjudication, arbitration and through the Courts. How can that be good for the industry overall?

So I want to advocate a different approach. In particular, an approach which is NOT adversarial. I should declare I have no self interest in this. As a mediator, lots of future claims and disputes arising from the current pandemic will undoubtedly mean more mediation work. However, I think my instincts as a mediator are part of the reason for looking at this current crisis in a different way. The construction industry needs to adopt an immediate policy of “no fault” in the context of the Coronavirus pandemic. In short, I am advocating the following actions/principles:

1. From the date the pandemic was first declared until the date it is declared as over, all claims or cross claims which arise out of or are materially connected with Coronavirus should be prohibited.

2. By application of a”no fault” principle, the consequences of the Coronavirus should be deemed a neutral event under the contract or common law. This means no LADs should be levied, no automatic rights of termination should arise , no claims for damages for disruption, loss and expense or other delay related events.

3. In practical terms, and notwithstanding the terms of the pre existing contract, there is nothing – other than the will to do it – preventing the parties from agreeing to vary the terms of their agreement or relationship to record the fact that the Coronavirus is a no fault event.

I am sure there are many arguments against what I am advocating, but my pre-emptive response is:

1. Right now, decisions on construction sites up and down the UK are being made not just on the health and welfare of workers but on economic grounds. Put simply, contractors, subcontractors, suppliers and employers are all worrying, right now, that if they take a decision based on the Coronavirus, that could expose them to crippling financial claims in the future which they may not be able to survive.

2. The health and welfare of people must be the decisive and determining factor when it comes to policy decisions in the current crisis.

3. The idea that a business or individual should be challenged in adversarial proceedings down the line for a decision they took to preserve the health and safety of themselves, their family or their workforce is, in the current climate, inconsistent with moral decency.

4. The industry should not wait for Government to act – primarily because it doesn’t have the bandwidth to do so. The Construction Industry needs to lead on this issue now. I would encourage all the relevant trade groups, associations and representative bodies in the UK Construction Sector to adopt a no fault policy around Coronavirus to existing projects. Even if the Industry as a whole will not move in the direction I am advocating, there is nothing to stop parties on individual projects adopting this approach

Victims losing confidence in Justice System

Victims losing confidence in criminal justice system, research suggests as coronavirus delays trials

Victims’ commissioner warns that bad experiences will make fewer people willing to support prosecutions

Victims are losing confidence in the criminal justice system, new research has suggested as coronavirus delays cases.

A report by the victims’ commissioner found “there is growing dissatisfaction amongst victims with how cases are handled”.

Analysis of data from the Crime Survey for England and Wales found that more than a third of victims were dissatisfied with how police handled their complaint, and 36 per cent were unhappy with the wider criminal justice system – up from 30 per cent four years before.

More than half of victims said police did not keep them well-informed about progress with their case – an issue cited as one of the factors driving down rape prosecutions.

One in five victims did not report their crime in part because they did not think the police would have investigated it.

Coronavirus fears lead to empty streets and shelves across UK

Dame Vera Baird QC, the victims’ commissioner for England and Wales, said the poor experiences recorded will “diminish the number of people willing to help the police and support cases to court”.

“There is concern about police inaction and the expectation of victims that police will not be interested their crime,” she added.

Prosecutions have fallen to a record low in England and Wales, with only 7.3 per cent of reported crimes resulting in a charge or summons.


All jury trials suspended in England and Wales amid coronavirus crisis

Victims given right to challenge attackers’ release from prison

Number of people punished for crimes hits new record low

Only 1.4 per cent of alleged rapes are now prosecuted, amid warnings that the treatment of victims – including mobile phone seizures and delayed investigations – are causing them to drop out of cases.

The Crown Prosecution Service (CPS) says police have been referring fewer cases for consideration, while police leaders have cited the impact of budget cuts.

Recruitment of 20,000 new officers – which will not fully replace those lost through austerity measures imposed since 2010 – promised by Boris Johnson started late last year.

But the coronavirus outbreak has forced the College of Policing to shut its assessment centres for new recruits, while it searches for an online replacement.

Senior officers have warned that a “graduated withdrawal of service” will be enacted if the pandemic worsens, causing the loss of officers and increased demand from the NHS.

Emergency response, threats to life and serious crimes will be prioritised, sparking a warning that gang and drug-related violence could increase.

The prime minister has said that police will enforce new measures imposed in a UK-wide lockdown, but the Police Federation said it was “not realistic” for stretched officers to monitor compliance with all rules.

New jury trials and the majority of magistrates’ hearings have been stopped because of coronavirus, but there are fears that domestic abuse and other crime types could rise as a result of isolation.

Robert Buckland, the justice secretary, admitted that the outbreak would cause a backlog of criminal cases on Tuesday.

“My concern is the witnesses, the complainants, the victims of crime who are having to wait even longer because of what is happening,” he told the Justice Committee.

Dame Vera urged the government to ensure victims’ rights are protected.

Although a Victims’ Code is in place to ensure a minimum standard of support, including referrals to other services, the report found under a fifth of victims had heard of it.

Bad Advice lead to losing at Arbitration.

Costain shares plunge after ruling on Welsh road contract

Costain: the company had a spat with the Welsh government over costs
Costain: the company had a spat with the Welsh government over costs ( PA )

Shares in Costain plunged 19% on Thursday when the contractor slashed profit forecasts due to an unexpected bill landing on its doormat from a costly road-building contract in South Wales. 

The firm had expected the Welsh government to pick up the tab on ballooning costs for the A465 project, a road upgrade contract which Costain won in 2011.

However, an arbitration panel ruled that the increased costs must be split between the pair, partially reversing a decision of an initial adjudication that the Welsh government should foot the bill.

Costain today wrote off £20 million due to the decision, lowering expected operating profits to £17 million and £19 million. Analysts had expected £38 million to £42 million of profit.  

Shares fell 32p to 160.20p 

Costain tried to soften the blow to shareholders, saying the ruling was against legal advice it had received on making provisions for the contract.

Chief executive Alex Vaughan said:  “Clearly the situation regarding the A465 contract is disappointing. Elsewhere, the business is performing in line with expectations. We have secured a number of new contracts to maintain our healthy order book. ​

The company won the £150 million contract with the Welsh government in 2011 to widen the A465 into a dual-carriageway. The 8km road links Gilwern and Brynmawr and runs through the Brecon Beacons. 

Costs ballooned to £275 million following late changes to the design of the project.

Peel Hunt analysts cut earnings per share forecast by 57% on the back of today’s writedown. 

“We continue to see value as management moves the strategy forward. However, despite reassurances that there are no similar situations, we expect investors to remain wary in the short term,” it said. 

Ethics and Negotiation: 5 Principles of Negotiation to Boost Your Bargaining Skills in Business Situations

How to use the principles behind negotiation ethics to create win-win agreements for you and your bargaining counterpart

December 12th, 2019

By — on / Negotiation Training


Knowing the norms of ethics and negotiation can be useful whether you’re negotiating for yourself or on behalf of someone else. Each ethical case you come up against will have its own twists and nuances, but there a few principles that negotiators should keep in mind while at the bargaining table.

By asking yourself the following questions, you can illuminate the boundaries between right and wrong at the negotiation table and in the process discover your own ethical standards:

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report,Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a BetterNegotiator, from the Program on Negotiation at Harvard Law School.

Principle 1. Reciprocity:

Would I want others to treat me or someone close to me this way?

Principle 2. Publicity:

Would I be comfortable if my actions were fully and fairly described in the newspaper?

Principle 3. Trusted friend:

Would I be comfortable telling my best friend, spouse, or children what I am doing?

Principle 4. Universality:

Would I advise anyone else in my situation to act this way?

Principle 5. Legacy:

Does this action reflect how I want to be known and remembered?

Doing the right thing sometimes means that we must accept a known cost. But in the long run, doing the wrong thing may be even more costly.

See Also: What If We Have the Same Social Motive at the Bargaining Table: When two people share the same motivation, they may fall commit the same mistakes and reinforce each other’s failures. In this article, we evaluate a labor negotiation in which the chief management negotiator withholds information about revenue projections, while the labor leader holds back details about workforce sentiment. With impasse the result, it helps to be aware of when you’re negotiating with a fellow individualist or a fellow cooperator, your goal should be to overcome the inherent flaws of your orientation (to identify your negotiating style – please read “Identifying Your Negotiation Style”).

See Also: Trust in Negotiations – Trust takes time to develop but negotiators rarely have time to build strong relationships with their counterparts so instead a cautious approach is undertaken in order to protect yourself from a bad deal. In this article, the argument for taking risks during a negotiation with a counterpart that you do not know is explored and the benefits and pitfalls of this risk-taking approach are delineated.

See Also: Beware Your Counterpart’s Biases – After a failed negotiation, it’s tempting to construct a story about how the other side’s irrationality led to impasse. Unfortunately, such stories will not resurrect the deal. In the past we have encouraged you to ‘debias’ your own behavior by identifying the assumptions that may be clouding your judgment. We have introduced you to a number of judgment biases – common, systematic errors in thinking that are likely to affect your decisions and harm your outcomes in negotiation.

See Also: Strategies for Negotiating More Rationally – In past articles, we have highlighted a variety of psychological biases that affect negotiators, many of which spring from a reliance on intuition. Of course, negotiators are not always affected by bias; we often think systematically and clearly at the bargaining table. Most negotiators believe they are capable of distinguishing between situations in which they can safely rely on intuition from those that require more careful thought – but often they are wrong. In fact, most of us trust our intuition more than evidence suggests that we should

Which negotiation principle is most important to you? Let us know in the comments..

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report,Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a BetterNegotiator, from the Program on Negotiation at Harvard Law School.

Adapted from “Ethics and Negotiation” by Michael Wheeler for the March 2004 issue of the Negotiation newsletter.

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Boris will fix it

With a sizeable majority secured, the eyes of the legal profession now turn to Boris Johnson and his government and how they intend to run the justice system.

The Law Society said today that repairing the system and championing the rule of law should be priorities of the new administration, alongside negotiating a future trade deal with the European Union.

Society vice president David Greene said Johnson takes office once more with the justice system of England and Wales ‘on its knees’.

‘Years of underfunding have led to crumbling courts, a crisis in criminal justice and growing numbers of vulnerable people refused legal aid and unable to enforce their rights,’ said Greene.

The Society called for restoration of legal aid for early advice in housing and family matters, a rise in criminal legal aid fees and a guarantee of no future real-terms cuts, and an increase in the legal aid means test.

The Criminal Bar Association echoed those sentiments and made clear that the justice system needs urgent injections of funding.

CBA chair Caroline Goodwin QC said: ‘There is no option left for any government but to invest properly and substantially in the criminal justice system from end to end. To do anything less would be criminally reckless with all our lives – rich or poor, state or private, we are all in this together.’

The Conservative manifesto made no spending pledges on justice, instead pledging to establish a Royal Commission – probably next year – on the criminal justice process.

The Tory victory is likely to mean that the Civil Liability Act, reforming the way personal injury claims are made, comes into full force, although there remain questions about the viability of the April 2020 implementation target.

The manifesto made pledges to ‘update’ the Human Rights Act and administrative law. It also pledged to ensure judicial review – while available to protect the rights of the individuals against an overbearing state – was not ‘abused to conduct politics by another means’ or to create needless delays. A commission is expected to examine these issues within the next year.

Civil rights campaigners have expressed their concern that Johnson may seek to restrict access to judicial review and make sweeping changes to the Human Rights Act.

Issuing a rallying call to new members today, rights group Liberty said its work now begins to see off an ‘attack’ on the HRA. The group added: ‘Our very democracy is under threat with this government that wants to put itself above the law.’

Bates V The Post Office

Post Office settles mammoth group action

The epic Bates v Post Office group litigation, which has dragged on for over three years, has been settled, the parties announced today with the Post Office admitting ‘we got things wrong in our dealings with a number of postmasters’. The surprise announcement was made days before judgment in the so-called the ‘Horizon trial’ – the second trial in the class action – is due to be delivered.

In a joint statement, the parties said that several days of ‘respectful, challenging, and ultimately successful mediation’ has resulted in a ‘comprehensive resolution’ to the litigation.

The Post Office expressed its gratitude to the claimants and said ‘in the past, we have fallen short and we apologise to those affected’. It said Nick Read, who joined the Post Office as chief executive in September, drove the mediation.

Tim Parker, Post Office chairman, said: ‘We accept that, in the past, we got things wrong in our dealings with a number of postmasters and we look forward to moving ahead now, with our new CEO currently leading a major overhaul of our engagement and relationship with postmasters.’

Read added: ‘I am very pleased we have been able to find a resolution to this longstanding dispute. Our business needs to take on board some important lessons about the way we work with postmasters, and I am determined that it will do so.

‘We are committed to a reset in our relationship with postmasters, placing them alongside our customers at the centre of our business. As we agree to close this difficult chapter, we look forward to continuing the hard work ahead of us in shaping a modern and dynamic Post Office, serving customers in a genuine commercial partnership with postmasters, for the benefit of communities across the UK.’

The value of the settlement deal is yet to be revealed.

In October the parties had run up legal bills of more than £35m, prompting a warning that some costs appeared excessive. 

The Post Office was accused of blaming sub postmasters and mistresses for alleged shortfalls in branch accounts since the roll out of a computer system called Horizon. The Horizon judgment – which is separate to the mediation – is still due to be handed down on Monday.

Peru’s Christmas fighting festival – mediation with punch

The festival of Takanakuy features music, dancing and a series of public fist fights.
— Read on

Peru’s Christmas fighting festival

Each year, the Peruvian province of Chumbivilcas hosts the vibrant Christmastime festival of Takanakuy. High up in the Andes Mountains, at an elevation of around 3,600m in the well-known Cusco region, communities get together for celebrations involving music, dancing, drinking, eating and brightly coloured costumes. It’s much like any number of festivals in Latin America – except this holiday gathering culminates with a series of public fist fights on Christmas Day (25 December). 

Entire towns congregate around sporting arenas to watch members of the community fight each other. People of all ages enter the ring, from young children to the elderly, and participation is open to women and men alike. The purpose of Takanakuy is to settle grievances built up over the year — be they civil disputes or personal ones — in a public forum. The festival seeks to resolve conflict, strengthen community bonds and hopefully, arrive at a greater peace.

Takanakuy, which translates to “when the blood is boiling” in Quechua (the primary language in the region), is a sort of more organized version of the comical “Festivus”, a holiday that most people believe was invented by the 1990s US TV sitcom Seinfeld. Festivus was actually created in 1966 by the father of one of the programme’s writers, Daniel O’Keefe; and just as O’Keefe’s family celebrated the tradition annually, people all over the United States continue to hold Festivus celebrations around Christmas to this day. On the television show, Festivus was portrayed as a secular holiday “for the rest of us” which forgoes the commercialism of Christmas for such practices as “the Airing of the Grievances” (in which friends and family members air their grievances with each other verbally) and “the Feats of Strength” (in which they do so physically). Considering that the fictional holiday ends with two family members wrestling each other, you can see how it is similar to Takanakuy.

But, contrasting the hilarity and absurdity of Festivus, there is some logic to be gleaned from Takanakuy. Once a year, people are encouraged to confront social tensions, get everything out in the open and let their aggression out — once and for all. In the small towns of Chumbivilcas, this may be preferable to living side-by-side with someone you harbour negative feelings toward. 

The fights themselves are relatively civil, bearing closer resemblance to martial arts sparring than uninhibited brawls. The matches are fully organized, with referees standing by to intervene at any sign of misconduct, and there are rules, such asno biting or no hitting someone when s/he is down. Each fight is typically very quick, sometimes lasting less than a minute. And, reflecting the intention of Takanakuy, each fight begins and ends with a hug or a handshake. 

This 2009 video clip shows the festival in action. For a deeper look at Takanakuy, this episode of the documentary travel programme The Vice Guide to Travel shows celebrations in the towns of Santo Tomás and Llique.

While in town
Takanakuy festivities take place against a mountainous backdrop 180km south of the city of Cusco, a must-visit destination for travellers due to its proximity to the beloved Incan site of Machu Picchu. In Cusco, the city’s Plaza de Armas hosts the Santuranticuy market through 25 December, drawings artisans from surrounding areas who come to sell crafts, clothing, food and various Christmas gifts. 

After a holiday filled with grievance-airing, market shopping and Andean trekking, relax your muscles at the thermal baths in Aguas Calientes, a village in the Machu Picchu area about 120km from Cusco city. Several cosy hotels have set up shop around the pueblo’s mineral baths – such as the well-reviewed luxury Inkaterra Machu Picchu Pueblo Hotel – making this the perfect place to wind down your exploration of Andean culture.

Mediation USA Iran


US Agrees To Japanese Mediation With Iran And Rouhani Trip

59 minutes ago

Japanese Prime Minister Shinzo Abe, left, and Iranian President Hassan Rouhani shake hands after their joint press conference at the Saadabad Palace in Tehran, Iran, Wednesday, June 12, 2019. The Japanese leader is in Tehran on an mission to calm tensions between the U.S. and Ira
Japanese Prime Minister Shinzo Abe, left, and Iranian President Hassan Rouhani shake hands after their joint press conference at the Saadabad Palace in Tehran, Iran, Wednesday, June 12, 2019. The Japanese leader is in Tehran on an mission to calm tensions between the U.S. and Ira

The United States has indicated its approval with Japan’s plan to host a visit by Iran’s President Hassan Rouhani to Tokyo, Kyodo news agency quoted “diplomatic sources” as saying.

Apparently, Rouhani is seeking Japanese mediation in breaking a deadlock with Washington over the 2015 nuclear deal also known as the JCPOA. According to the sources quoted, the Trump administration is looking forward to learning about talks between Rouhani and Japanese Prime Minister Shinzo Abe.

The report says Iranian and Japanese officials are making arrangements for Rouhani’s visit around December 20, which would be the first such visit in 19 years.

Iran faced a serious upheaval in November as fierce protests engulfed the country, sparked by economic pressures triggered by U.S. economic sanctions. The Trump administration in 2018 withdrew from the nuclear agreement and imposed crippling economic sanctions.

Japan has maintained good relations with Iran over the years and can be considered a suitable mediator between Tehran and Washington. At the same time, Abe is a close ally of Trump. Last June, he visited Tehran in a mediation mission, but all efforts failed during Rouhani’s visit to the UN General Assembly in New York in September, when he did not show up for a telephone meeting with Trump and French President Emmanuel Macron.

Sources told Kyodo that Abe is expected to urge Iran to abide by the JCPOA, as Iran has gradually reduced its commitments under the deal to show its dismay with sanctions and Europe’s failure to help break Iran’s economic isolation.

Julie Hamilton: Spotlight on mediation – Scottish Legal News

Julie Hamilton considers the role of mediation in commercial litigation and whether the flexibility it offers may be the route to avoiding, or at least limiting, the disputes that get to court.
What is mediation?
As Scottish Mediation describes it: “Mediation is a flexible process that can be used to settle disputes in a whole range of situations. Mediation involves an independent third …
— Read on

Mediation between Bayer, plaintiffs seeks to clarify all justified claims: U.S. mediator | Article [AMP] | Reuters

Mediation between Bayer, plaintiffs seeks to clarify all justified claims: U.S. mediator | Article [AMP] | Reuters
— Read on