Mediation – what’s it all about?
What is mediation?
Mediation is a voluntary and confidential process, involving an independent, trained mediator, usually with experience in a particular area of dispute resolution, often but not always legally trained, whose role is to achieve a settlement.
Why is it in the news?
A recent trend in construction cases demonstrates some of the pitfalls of formal dispute resolution procedures – in particular adjudication; often described as ‘rough and ready’, where a ‘wrong decision’ is still enforceable, costs are not recoverable (and often more than initially anticipated) and subject to increasingly technical and lengthy processes.
The Courts, perhaps unsurprisingly, continue to cost penalise parties, even if ultimately successful, who unreasonably refuse to agree to, or engage in the practicalities of setting up and attending a mediation.
Why mediate – what’s all the fuss about?
- Mediations are flexible on outcomes and terms reached – other processes only award damages as a general rule and without payment schedules taking into account ability to pay and/or a combination of money with services provided without cost etc;
- Agreement is reflected in a binding settlement document – which should have the same enforcement strength as a court order;
- Mediators can be selected for their knowledge and expertise – relevant to the issues in dispute and increasing the chances of settlement;
- Parties have far greater input into the mediation process: controlling outcomes, information provided, having experts give their views in practical discussion and staff as necessary – without the same constraints and technicalities of formal proceedings;
- Relationships can be preserved and management time and resource saved – allowing parties to ‘move on’ and work together again;
- Costs are modest compared to other forms of dispute resolution (e.g. court, adjudication and/or arbitration proceedings);
- High settlement rates – the bottom line is that mediation works.
The ‘Won’t I look Weak’ concern
Agreeing to mediation in no way undermines your position. It simply reflects that the parties accept the risks associated with formal dispute procedures and want to seriously explore settlement before becoming embroiled in lengthy and costly proceedings.
When can I mediate?
Parties can mediate at any time without prejudice to any other dispute procedures – so, before a claim is being formally pursued and once proceedings have commenced.
Is it like a trial?
Mediation is not the same as a final court hearing or meeting with an Arbitrator or Adjudicator, but it does allow the parties an opportunity to openly discuss their claims and grievances – on a confidential basis. Nothing said in the mediation can be later repeated or used against you.
Will I get a decision?
The Mediator’s role is not to advise or to issue a decision. It is to bring objectivity to the dispute and ask probing questions, so the parties assess the merits of their cases realistically, weighing up the merits of their claim, the pros and cons of reaching agreement and assessing what ‘not settling’ means for costs, time and resource. All with a view to settling the dispute.
Who will be at the mediation?
Parties usually attend in person, with their lawyer, who will advise throughout and ensure that a binding and enforceable settlement is properly drawn up at the conclusion of any successful mediation. Key members of staff who know the details of the dispute, as well as management with authority to settle, should attend. Specialists and experts can attend – but only if necessary and if they will actively help achieve settlement (i.e. clearing ‘blocks’).
Why is mediation gaining in popularity?
Mediation has grown in popularity over the years for one simply reason – it has a proven track record of achieving settlement of disputes. If in dispute, or within a dispute ‘brewing’, you should at least be giving the option of mediation some serious thought. It can settle all manner of disputes, in a construction context ranging from complex final accounts, with extension of time and loss and expense claims, as well as claims for defective works and the like.