Remember the collapse of Atlantic Computers in 1990? It also brought down British & Commonwealth Holdings (B&C) – the company that had taken it over.
The collapse triggered a series of litigations. After an extensive investigation into Atlantic by the DTI, Atlantic and B&C started proceedings against a spectacular cast including BZW (B&C's advisers in the takeover), NM Rothschild (Atlantic's advisers in the takeover), OC&C (strategy consultants in the takeover), Spicer & Oppenheim (Atlantic's former auditors) and various Atlantic directors.
B&C also sued Atlantic. B&C claimed a total of £850m including interest. The trial had been scheduled to begin in May 2000 and was predicted to last for 15 months. The litigation settled in January 1999 following the biggest-ever known European mediation. The mediation was conducted with the support and approval of the Centre for Dispute Resolution (CEDR) by two co-mediators – Lord Griffiths, a retired Law Lord, and US mediator Jonathan Marks.
Is mediation or alternative dispute resolution (ADR) particularly suited to insolvency-related cases? We think it is.

Unique commercial considerations
Regular litigants may have more than purely commercial concerns at heart. They may be keen to have their day in court, protect their reputation and capitalise on or avoid potential publicity.
Liquidators or administrators have principally commercial objectives in mind. Their primary duty is to creditors. Mediation may also provide a commercial solution for creditors. For example, the mediated settlement could require the creditor to vote in favour of a Company Voluntary Agreement or a scheme of arrangement.
Liquidators and administrators' duty of care and skill means they are particularly keen to ensure quick and speedy resolution of disputes. A successful mediation will invariably be cheaper and quicker than a court action, resulting in more money for creditors and more time for the liquidators and administrators to concentrate on other matters. They are under a duty to consider the use of ADR – and will have to justify themselves to creditors where they have not done so.
An administrator can make the company enter into a mediation agreement and be bound by it, and must ensure that the terms are reasonable. A liquidator is empowered to settle disputes but only with creditors' committee or court sanction. Any settlement will therefore be conditional on this, lending the liquidator greater bargaining strength.

Confidentiality
The confidential nature of a mediation means that parties can confide in the mediators, allowing them to facilitate finding a middle ground. In an insolvency, the creditors' committee will usually have signed a confidentiality agreement which can cover the mediation process and the result. Confidentiality of a mediated settlement means less risk to the other side of losing face.

Non-cash assets
One potential stumbling block for administrators or liquidators in the mediation process is that their duties as officers of the court, and the fact that a company's operations may have ceased, mean they are less at liberty to 'trade off' non-cash items. For example, where the value in defective goods may be released by an arrangement to a third party to provide X% of the on-sale scrap price to the seller. An administrator or liquidator would not agree to such a settlement without being satisfied that it was commercially acceptable. Similarly, unless an administrator is seeking to ensure the survival of the company as a going concern, it will not be possible to capitalise on ongoing business arrangements.

Proof of the pudding
It is difficult to generalise about ADR's suitability in insolvency but experience tells us it works.
After 12 years of litigation between the UK government and Arthur Andersen over the De Lorean motor company collapse, Mr Justice Colman made an order encouraging the parties to attempt ADR. Despite this being against the wishes of both parties, a settlement was reached.
In 1996 Lord Wakeham and the former French Justice Minister, Robert Badinter were appointed to mediate between Eurotunnel and its creditor banks to avoid insolvency proceedings. Eurotunnel survived.
In 1998 the liquidators of Barings plc announced they were implementing a conciliation plan proposed by the City Disputes Panel. Conciliation was also used to great effect in the Lloyd's and Maxwell cases.
Other jurisdictions have taken on board the importance of using mediation within the insolvency context. In Canada, mediation is now standard procedure in personal bankruptcy situations and the Rules of Court in some Canadian provinces require that the parties try to find an ADR solution before setting the matter down for trial. Similar programmes are in place in the US, such as the court mediation programme in the United States Bankruptcy Court, New York (Southern District).

Moving on
Mandatory consideration of ADR with judicial involvement should be one of the first steps in all proceedings because neither party would fear that by proposing settlement they will appear weak to the other party. The Woolf reforms make consideration of ADR compulsory at case management conferences. Beware of sanctions for unreasonably withholding consent!