Facilitated Dispute Resolution for the Construction Industry.
Consistent feedback from the construction sector tells us that adjudication, which was specifically set up to deal rapidly with construction disputes, is increasingly unpopular. As litigation became well known for being drawn out, complex, expensive and unsuitable for many construction disputes and the same came to be said of arbitration; so, adjudication now seems to have become expensive, with the additional problem of many wayward and unreliable judgements.
So would a facilitated negotiation - or mediation - be a solution? Although it has many benefits over adjudication, traditionally the response has often been negative: "We are used to negotiation. We do it all the time. We are good at it and know our business intimately. What does mediation add to what we have?"|
Adjudication |
Mediation |
|
|
Independent 3rd party |
Yes |
Yes |
|
Decision makers present |
Maybe |
Yes |
|
"Stress test" solutions |
No |
Yes |
|
Quick |
Relatively |
Yes |
|
Known costs |
No |
Yes |
|
Creative solutions |
No |
Yes |
|
Confidential |
No |
Yes |
|
Chance of win - win |
No |
Yes |
|
Avoidance of further relationship damage |
No |
Yes |
"Facilitated Dispute Resolution".
It may not sound much, but the model has three key additional elements:|
Expertise |
Yes |
Yes |
|
Optional opinion |
No |
Yes |
|
Finding imposed |
Yes |
No |
We can provide mediators with expertise and experience of construction. They can, once all the facts have been aired, if the parties wish it, offer the parties their opinion - in private - on the merits of their case - but without imposing it, as would an adjudicator.
So, the parties still have the power to decide the final outcome but they can do so in the light of an experienced opinion.
Our expert panel includes Gill Alexander, Kahleen Crawford, and Daphne Wassermann, with the legal experience of David Semple. You can see their CVs by following this link to the Construction Team.
If you would like to know more, please get in touch with David Semple (david@catalystmediation.co.uk) or Jeremy Scuse (jeremy@catalystmediation.co.uk)
Mediation in the construction industry
There are many ways to deal with construction disputes, so why do our clients use mediation?
- Success: in the UK and around the world, parties reach a mutually acceptable agreement in over 75% of cases.
- Privacy: mediation's confidential nature provides protection to reputations.
- Economy: costs are usually shared equally by the parties. The costs involved will be a small fraction of the time and costs of an adjudication, arbitration or worse, litigation.
- Speed: a mediation can be arranged within days and normally takes about one full day. The agreement is usually made there and then, so Contractors can get paid, Employers get results and Architects can breath a sigh of relief.
- Voluntary: If you feel you are being messed around, you simply walk away. You are bound to nothing until you sign a settlement agreement with which you are happy.
- Control : You have control over the contents of the settlement which can be wider than pure cash. No adjudicator will impose his solution.
- Without prejudice: proposals made in a mediation that fails, cannot be used in any subsequent proceedings.
- Commercial solutions: You know what you need to achieve and this may fit in with a larger agenda, so by discussing the problem in a calm, professional atmosphere, practical solutions can be fashioned that benefit everyone.
- Maintaining Relationships: In any business it is important to have good relationships and adjudication, arbitration or the courts can make this difficult. Mediation has a track record of allowing business relationships to be maintained and sometimes strengthened.
- Your legal rights are unaffected: If the mediation does not work, you can still use adjudication, arbitration or the courts.
BUT it is not a soft option: It will be one of the tougher negotiations of your career. But all the parties will be there because they want to reach an agreement and move on with their lives.
What to do now.
Contact us and we will discuss the options with you in complete confidence and give you an idea of potential costs. We could also contact the other parties to see if they would be willing to mediate. Or, as we know many lawyers who work in the construction industry and regard mediation as a positive option, we could make an approach to them if this would help. You may also find them listed in this Solicitors List.
Either way a few minutes discussion about mediation could save you time and money.