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Mediation - A brief Explanation

Mediation is a well established process used for resolving disagreements in any matter which an impartial third party (the mediator) helps people in dispute to find a mutually acceptable resolution.

Mediation is based on the following principles:

  • Collaborative problem solving between those in dispute, reaching a 'win/win' situation which is acceptable to all.
  • A focus on the future, with emphasis on rebuilding relationships rather than apportioning blame for what has happened in the past.
  • A belief that acknowledging feelings as well as facts allows participants to let go of their anger and upset and move forward. The structure and common-sense approach of mediation:
  • Gives those involved an opportunity to step back and think about how they could put the situation right. This can mean looking at their own behaviour as well as that of other people.
  • Enables participants to come up with their own practical solution which will benefit all sides.
  • Allows people to rebuild relationships as they work together to find an agreement. This is different to the legal process, where hostility often still exists between parties once the case is over.

Mediation is generally more cost effective and quicker than going to court, and is a flexible process that can be used to settle disputes in a whole range of situations..

It is also an excellent preventative tool and can be used effectively to stop problems escalating and becoming worse.

Thus the role of the Construction Industry Mediator includes an appreciation of the psychology of disputes as well as construction expertise and arbitration


skills.

Mediation Procedure

Unlike Arbitration and Adjudication, Mediation is a more informal approach to construction dispute resolution. The process to be adopted can be agreed between the parties, it is likely to be non-binding, without any need to comply with rigid legal rules or worries about natural justice, the mediator can approach each side and express his opinions more openly so as to advise each side of what the likely outcome of the dispute will be. This process is likely to include time spent with each party individually letting them put their case. There may then be a meeting of both parties with the mediator, where the likely outcome of the dispute will be expressed. Following this the parties hopefully will then make an agreement and settle the dispute.

ARBICON can provide party representation by attending mediation meetings and assisting with presentations to the mediator including advice on matters of disclosure and without prejudice submissions.

Although mediation sounds simple and straightforward, in reality it requires the diplomacy of both sides and commitment to submit to such a procedure on a voluntary basis. This can prove difficult in practice as disputes arise normally when one party strongly refuses to provide performance or payment under the contract and thus may refuse to entertain any form of ADR. Thus if the issue must be forced Adjudication or Arbitration will be appropriate.

If you would like to know more about mediation, need a mediator or require representation in a mediation, ARBICON can assist. Please get in touch for an initial FREE consultation.