Case Study 6
Breach of Contract for Commissions on Real Estate Development;
Overlapping business dealings with third parties;
Mediator suggestion to include non-party as key to settlement of multiple lawsuits.
Background on the Case: Plaintiff, an independent contractor on fee/commission with a real estate developer filed suit in Business Court for breach of contract. The amount claimed was significant, but there were serious legal issues and proofs that make the outcome uncertain. The Mediator was selected by the parties at the conclusion of significant discovery and unsuccessful motions for summary judgment.
Leadership by the Mediator: The Mediator held separate meetings with each side prior to the formal Hearing (The Mediator refers to this practice as “PreMediation”). The Mediator learned that the Plaintiff was preparing a separate lawsuit against the Defendant and others based on an unrelated development project. The Mediator was authorized to explore the opportunity to combine a discussion of the forthcoming lawsuit at the time of the scheduled Mediation Hearing.
Outcome: The relative strengths and weaknesses of each party’s case was reversed for the two lawsuits, and both matters were resolved at Mediation, with the condition that the third party acquiesce to the terms of the proposed global settlement.
Insight: Engaging in an open dialogue, listening and asking the right questions during the PreMediation session can uncover opportunities that provide benefit to both parties. Here, the Mediator learned that the Defendant was not aware of the pendancy of the new lawsuit. The Mediator sought approval from the Plaintiff to discuss the concept of combing unrelated issues at Mediation. The Defendant and unrelated third party were receptive to resolving both disputes simultaneously, which had the obvious benefit of avoiding unneeded transaction costs. Separate meetings with the parties well in advance of the scheduled Hearing made it possible for the parties to react to the proposal, and changed the mind set from antagonistic to cooperative. The juxtapose of bargaining strengths between the two lawsuits made the global resolution a practical solution.
Judge: James Alexander, Wendy Potts
Plaintiff’s Counsel: Donald R. Bachand, III, Garratt & Bachand, Bloomfield Hills, MI
Defendant’s Counsel: Don William Blevins, Blevins Sanborn Jezdimir Zack, Detroit, MI