“….But it is”, I hear you all saying, except the reality is that Mediation is often only used in our industry when the Parties are forced to, for example, as part of the Pre-Action Protocol for Construction Disputes. What always surprises me, as an RICS Accredited Commercial Mediator, is how little it is used outside of these circumstances and how Adjudication still seems to be the Alternative Dispute Resolution path favoured by most in construction.
So what are the reasons for this?
Well I believe it is because Mediation is seen as non-binding and the outcome doesn’t always provide a perceived “winner” and a “loser”. Furthermore, the outcome can be challenged in the future.
However, I think that that we lose sight of a few key points when coming to this (incorrect) conclusion. Firstly, it is partly true to say that Mediations are non-binding, but usually only up to the point of agreement. More often than not, at the conclusion of a Mediation the Parties agree upon some binding words that is often drafted by a solicitor. So, once agreed they do enter into a binding written agreement. For that reason, I always have a lawyer on standby on the phone at the end of my Mediations, to draft something quickly the same day, so that the Parties can put in writing the agreement they have achieved without wavering and returning to their original, often entrenched, positions that caused the dispute in the first place.
Secondly, as I said, I believe that lack of a “winner” and a “loser” can put the Parties off the process, who of course will both believe they will be the winners in an Adjudication. But will they? Adjudication is often quite a gamble which can be costly, sometimes running into tens of thousands of pounds of non-recoverable fees for both sides. Surely a more common-sense approach is for both parties to try and reach agreement via a Mediator first, perhaps only spending a fraction of the fees, with just as much likelihood that there will be a positive outcome that both sides can accept.
Which brings me onto my next point. Why in my opinion do disputes occur and why should Mediation be considered as a first option?
Disputes occur because two sides disagree on something…… that’s obvious, right……but is it so obvious? I believe that real disputes occur because of the feeling people get that they can’t back down. Sometimes they feel they can’t back down because they have gone too far already and to back out would somehow show weakness plus they have already put a lot of time, effort and cost into “building” their position. Sometimes it can be as simple as the two sides have simply grown to dislike and mistrust each other so much that they have started mind reading……second guessing what the other side is thinking, doing, planning, and plotting. And in my experience, most of the time they are wrong, and the other side is feeling the same but neither knows how to move away from the seemingly inevitable course they are both on.
This is where I think Mediation is the real winner.
An Adjudication can simply fuel that mistrust and antagonism. It is rare for either side in an Adjudication to read the other’s Referral or Reply and accept the points the other has raised. However, in Mediation we have much more latitude to unlock the mistrust, or at least put it behind us, after all, for most of the Mediation the two Parties are separated by not being in the same room. They can vent all their frustrations about the other Party and project them onto the Mediator who can then re-frame it and get to the heart of the dispute to find the common ground which then leads to resolution.
And this is the key to it all, and surely the most important point. Mediators are trained and have the skills to seek out and find the common ground often allowing both sides not to lose face and walk away with a deal and their heads held high. This is surely what everyone wants and let’s face it, what usually happens at a traditional final account meeting, a.k.a. the “bun fight”. The only difference with Mediation is that the Parties have recognised that before they waste their time, energy and costs on an Adjudication or series of Adjudications, that they might just employ a specialist to sit in the middle and bring the volume of the dispute down so that the bun fight can happen through the Mediator; no one loses face, they strike a deal, and everyone walks away and can get back to their core business.
To finish, I’m not saying Mediation is perfect and the solution to all issues. Nor am I saying that there isn’t a valid place for Adjudications; I’m simply saying that we should consider Mediation more readily as another way of unlocking a dispute. After all, its quick, inexpensive, and more often than not there is a positive outcome – so what’s not to like?...... but then I suppose as a Mediator I am perhaps a little biased. 😊
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