Builder's Pages

WHAT IT ENTAILS Negotiations
Agreed Settlement
Who?                    How?                   What follows?

ONE SHOULD Consider                    Savings all round       Avoid                     Grab the opportunity  Avoid complexities    Seek co-operation Consider other side  Go for settlement    

CONSENT ORDER
What is it?   Enforceable?                

There, for the citizens to ask for and benefit(?) from!

At the best of times going to court proves to be a daunting experience to almost everyone. Indeed I learned over the previous months of the effects and costs in terms other than hours lost and failures to attend to my other work with a clear mind. I needed guidance and assistance and I arranged for an officer from the Landlords Action Group to see me in order to discuss my predicament. I was told that a new scheme had been introduced for small claims and that I should consider applying to court for 'the mediation service'. I contacted the court and secured the necessary application forms. For the  purposes of the mediation negotiations I asked for  the LAG officer to accompany me to the county court.

Mediation meetings usually take place in the late afternoons and early evenings. On the relevant day I collected the person who was to assist me and on the way to the court I was told that everything is conducted in an informal manner, but in very clear and plain to understand terms. The fact that I was not taking time off work during normal working hours was more than welcome. The facility proved very useful for me and so it could be for anyone who is managing a small business.

Too many hours had been lost in and out of court offices and the courts up to that time. Applying for and dealing with the need to secure from and to impart information from and to the court and the other side, had taken its toll of me. The demands made of me had been the most disturbing issue after I instituted court proceedings. Having to acquaint myself with technicalities and procedural issues, over the previous year, had been very demanding for a busy person . I was glad the mediation option existed and pleased with myself for acting upon the advise from the Landlords Action Group.

At court we were guided to a room where the other side joined us with the officer who was to conduct the negotiations between the parties. I explained to the person assisting me that one of the parties to the proceedings, one of the three partners I had contracted with, was not present. The Court officer explained the procedure that was to be followed and my assistant asked of the officer to secure confirmation from the two partners who were attending from the other side that they were also to act for their partner who was not present. One of the partners, a solicitor, who had been in control of the financial arrangements throughout, confirmed that indeed such was the case. He telephoned the absent partner on a mobile phone and further qualified that, as acting solicitor for the partners, he was attending with clear instructions. Up until that juncture, both sides in the dispute were in the same room. After the confirmations we requested were dealt with the court officer took the other side to another room. Thereafter the mediator was to commute from room and room and convey to each side the opponent's reactions to offers and counteroffers for a negotiated settlement.

While the court officer / mediator was with the other parties, I was advised by my assistant to do my utmost to secure an agreed settlement. On my part  I explained that the damage done to my business through and because of the demands made of me in having to attend the issues raised in the court proceedings had never left my mind. In the circumstances, I agreed, it  was imperative that I secured a settlement, for the sake of my business and my piece of mind. I also recognised that the cost to my personal and family life had also been too high, for that which I was pursuing. My initial resolve rested on the principle that no business could possibly survive on the basis of 'unsettled accounts when the sums owing were well over the profit mark up' in any given situation'. On the day I decided that it was better to secure an agreement lower than the money owing because of the problems I had encountered and problems I could be facing at court if no agreement was reached. It was obvious from what had taken place, since the proceedings were issued and served, that the other side were determined to use the court's facilities and any means to evade meeting their liabilities.

I was no longer overlooking the fact that one of the partners was a solicitor and that he never made payments on time and as the partners had agreed with me. I was also told, by the person who was assisting me, that any solicitor could use his knowledge of the trappings in court proceedings and to keep in mind what I had been subjected to since I first raised the issue of the outstanding balances on all three contracts. I stated that indeed I had determined a settlement would be better than a return to the court processes I had experienced up to the day I was advised to take the mediation route.

When the court officer returned to discuss with us the issues raised with and by the other side, he informed me that he would do his best to assist in a negotiated settlement because he realised that cash flow was uppermost in my mind. I explained that issues that never existed before I instituted court proceedings were introduced by the other side and I recognised that it was a case of anything goes for and by solicitors to get richer by the hour. In the circumstances, I emphasised, I was there to secure a negotiated settlement precisely for the very reasons. Frankly, I stated, it was a case of catch 22 and the financial strangulation of the business. There followed plenty of toing and froing and at every stage of the negotiations I always discussed with the person assisting me the possibilities and eventualities should I fail to secure a negotiated settlement. Every time the court officer left us to go to the other room where my opponents were I sought more information from my assistant as to the situation that could evolve at court should we not secure a settlement. Based on what did transpire following service of the three summonses I was caused to recognise that any determined solicitor could create all sorts of scenarios in pursuit of 'litigation generated income'. With that in mind I determined that I should secure a settlement in order to put an end to such possibilities. Accordingly that which I determine to secure, at any cost as a better option than aggro 'in the solicitors playing fields', was achieved within the time limit set by the court officer.

The agreed settlement was then drafted by the court officer and all changes and amendments were initialled and the attending parties to the proceedings were invited to sign it in his presence. We were told that a Consent Order would be issued and sent by the court in due course. The Order, as an enforceable court instrument, can only be varied by application to court if some serious flaw and or error in or breach of statutory provisions and law occurred. In other words the Consent Order Is the end of the matters it pertains to and as such It Is An Enforceable Instrument.

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