Chris Makin - Chartered Accountant, Accredited Mediator

Examples

Here are some anonymised examples of the very wide range of cases which Chris Makin has mediated. All names and identifying features have been excluded:

Expensive Motor Cars

The owner of a rather expensive motor vehicle wished to reject it after 10 months, because it was constantly bursting into flames. The dealer refused to take it back, but the importers recognised that the publicity would be very bad if the matter came to court. They facilitated a return of the vehicle, and the supply of a far more exclusive and expensive vehicle at a preferential price, which the customer made clear he would immediately sell at a profit. Both sides were better off. This is exactly the kind of dispute where the Court of Appeal pleaded for mediation to be used more often, in Egan –v- Motor Services (Bath) Ltd.

Partnerships

Two ladies were in partnership running a nursing home. One had provided virtually all of the capital to buy and convert a huge Victorian property; the other was a nurse, essential to the business, but they couldn't work together any longer. I set up a spreadsheet with all key figures from the business accounts, and as agreement was reached on such matters as partners' salaries, interest on capital, profit shares, who was to take which asset and which liability out of the partnership, their closing capital account balances were calculated. Each was able to approach me with "what if" proposals. The parties were able to reach agreement, knowing exactly how much each would be able to take out of the business.

Mother and son had been in partnership in a cash business. When the mother retired, the business profits increased and the son formed the view that his mother had stolen £250,000 in cash over past years from the partnership. One of the relatives attending was a tax expert and, working with his brother, he showed him that the figures were exaggerated. After a long day and evening of negotiation, agreement was reached whereby the son withdrew his claim and the mother paid part of his costs. The agreement was signed at five minutes to midnight.

Company Sale/Purchase

The assets in an old-established engineering business were sold, with a review of the goodwill value after two years, dependent on how many customers had been retained. Customers had been lost: the vendors thought because the new owners didn't know how to handle them; the purchasers were suspicious that the vendors knew the customers who would be lost, and they refused to pay the final instalment of the purchase price. The differences were narrowed, but agreement could not be reached. Then it emerged that the purchasers wanted to exercise an option to buy the freehold factory at £600,000, but through their pension fund, not by the new company in whose lease the option lay. For the new company to exercise the option the Stamp Duty would have been £24,000 at 4%, with a second £24,000 payable when the factory was sold to the pension fund by the new company. The vendors agreed to have the option clause extended to the pension fund – that was no loss to them - and the saving of £24,000 was sufficient to close the gap, so that agreement on the whole case was reached.

A family company had the freehold of a retail shop which one brother had operated for many years, but he wished to retire. Another brother wished to buy the first brother's shares so that the company's main asset, the property, could be redeveloped. The developer brother came along with a fat cheque book, and the other brother with a form requiring signatures so that he could draw his company pension. Agreement was reached; a cheque and a signed pension consent were passed to the retailer brother, and the developer brother received a signed stock transfer form, and could now develop the property. This is the only occasion on which I have known a settlement agreement setting out, not what the parties promised to do in future, but what they had already done some minutes earlier!

Joint Venture

Two men had run a greyhound syndicate for some time, but had fallen out over unpaid kennel fees. Each wanted the dogs and bitches which would preserve the blood lines registered to them; neither wanted to be caught having to pay what they regarded as the other's unpaid kennel fees under joint and several liability. I drew up a spreadsheet setting out all the animals, their values to be agreed, and the syndicate's debts. The values of the "assets" were agreed, responsibility for payment of the debts was agreed, and there were undertakings for reimbursement of any debts paid by the "wrong" party. Each party became the unfettered owner of their dog dynasty.

Construction

A plumber and a building company entered into a joint venture to build a large executive house; the plumber supplied some labour and the land, whilst the others provided all the construction materials and labour. The house was finished, but could not be sold because the parties could not agree on the value contributed by each, and therefore how to share the proceeds; yet both sides were complaining that they had no money! I suggested that we should mediate in the empty house, using garden furniture, and by compiling a spreadsheet showing stage by stage what each had contributed, the divisible profit was soon agreed.

Professional Negligence

A litigant in person was suing for £750,000 over an allegedly defective post-nuptial agreement. His misunderstanding of the law was a barrier to settlement, and he was facing financial disaster at trial. There were six solicitors and a claims manager on the other side. I arranged for just two solicitors to meet the litigant and explain the law to him. The claims manager agreed to write off costs of £134,000 (any attempt to recover costs would have been a Pyrrhic victory) and the claimant agree to accept £30,000 in full settlement. Both sides wrote to me afterwards expressing their thanks.

Boundary dispute

In a case concerning blocked access to trade premises, a blocked right of way and encroachment of parking spaces, two business neighbours had not spoken for 10 years, and refused at the start of the mediation to sit in the same room. The aggrieved party had submitted a claim for £100,000 loss of profits, but that was really just a cry for help. After a long day of negotiation, including a site visit where the cause of the blockage was addressed, a settlement was reached consisting of agreement to relieve the cause of the blockage, a small payment of damages, and each to pay their own very modest costs.

Probate

In a rather nasty probate dispute, brother and sister who had not met for many years had their own reasons for hating the other. Eventually, an item was discovered which one side was desperate to own, and which the other had no affection for – the grandfather clock! The other differences then melted away, and agreement was soon reached.

The claimant was the second wife of the deceased. He had married four wives altogether, but it had taken 22 years for the financial agreement to be reached with the claimant; it seems that the couple enjoyed negotiating! Each spouse had taken out substantial values in property, and the second wife had given a charge to the deceased on her mansion, for the excess value she had taken out. The settlement and the subsequent wills were very tax-efficient. Then on his deathbed the deceased executed a codicil excusing the second wife from the charge. This was not only out of character, with doubts about his testamentary capacity, but it also spoiled the tax planning. Both sides agreed not to face the risk and huge expense of a trial, agreeing instead to cancellation of the codicil for a reduced payment.

Marine engineering

An inshore fisherman had been left a second fishing boat in his father's will. That second boat had been repaired and was in storage, but unfortunately the dockyard had allegedly twisted the hull when winching the boat onto the dockside. The fisherman wasn't bothered about getting the boat back – he had a boat already – but the storage charges were escalating and the repair bill remained unpaid. As we assembled for the mediation, the inexperienced solicitor acting for the fisherman asked for some time to settle the matter, as though I were a judge waiting to hear the case! After some hours, the solicitors came in with an agreed settlement. It is surprising what a mediator can achieve, just by being there...

Ownership of house

A gentleman aged 95 had brought up six sons, and helped the first five to buy their own homes. He had lived for some years with the sixth son and his wife, and relations were strained. Their house was co-owned with the father, who would not pass on his share, as he had done for the others. The father spoke only a rare Indian language, so all discussions with him had to be through an interpreter, who was excellent. Agreement was reached whereby, with a cash adjustment, the sixth son would own his own home, the father could go to live with his favourite son, and the Stannah chair lift and other disabled living aids could be transferred

Supply of goods

A specialist supplier of automotive parts was suing for payment of goods supplied directly to a third party, but the purchaser refused to pay, saying there was no evidence of a contract allegedly set up by predecessors at their company. It was a pity that this dispute had arisen, because the specialist supplier had excellent products which the defendant company wished to buy. Agreement was reached whereby the claim was withdrawn, with an undertaking that goods of a certain value would be purchased over a period, giving the defendant the goods they wanted, and giving the supplier much more in profit on those goods than the amount he was suing for. Litigation destroys relationships; mediation can restore them.