This article is all about the role of the mediator in construction disputes.
Stravelles run a course in Adjudication which aims to allow the student to run their own adjudication as the referring or responding party without paying for legal representation.
We support legal representation in more complex cases but we want to encourage especially smaller companies to feel more confident fighting for their contractual rights.
Mediation is a dispute resolution process whereby an independent third party is appointed by both parties to help both parties come to an agreement.
The mediation process is non binding, either party can walk away from the process at any time.
A mediators role is simple. It is to provide the best circumstances in which an agreement can be reached. The mediator should organise a neutral venue and manage the mediation process with a light touch, helping both parties reach common ground as they head towards agreement.
Mediation has lots of advantages which we go through in detail here. In summary, mediation is an informal process that could help disputing parties come to agreement without spending lots of money on the courts system or falling out too badly.
Because the mediator is an independent neutral party there is a better chance of an agreement occurring because both parties can deal with the mediator rather than their warring contractual party.
Both parties can walk out of the process at any time and this means there is less pressure on both parties, they don’t feel trapped.
Mediation has lots of disadvantages which we go through in detail here. In summary, mediation is not binding so process could end up being a complete waste of time and money.
How should a mediator behave in a construction dispute ? Lets look at the key attributes of an Adjudicator.
Clients expect a mediator to be able to run an informal process that is conducive to an agreement being reached. So this means that the mediator should be competent in organising a venue and then running through a simple mediation process.
A mediator should be friendly, engaging whilst being professional respectful. A mediator should be friendly, calm and gentle. A great mediator should be able to judge each parties emotional needs and to manage each party according to their needs helping get an agreement over the line.
There should be no need for ego or theatrics from a mediator. The mediator should be a gentle, impartial voice of reason that brings both parties back to the path towards agreement.
The mediator should start by identifying all of the common ground between the parties where they agree. They should identify all the common ground that both parties share and sit them firmly within that common ground. They should focus on the common ground and then discuss the small islands of disagreement that both parties have issue over.
Also, the mediator should identify the negative consequences of not coming to an agreement such as further dispute resolution processes that cost a lot more time and money.
The mediator should be committed to providing the circumstances for bringing both parties to an agreement but not fixated on them doing so. For example, a mediator will be successful if they provide all the circumstances necessary for both parties to agree and one party walks away. A mediators success is not dependent on the actions of one or more parties. Sometimes a party will simply not want to agree.
A mediator should never fall into the trap of fixating on getting both parties to agree at all costs. This is because they will start to become manipulative in their dealings with the parties and essentially ‘playing’ them to ensure they agree. That is not true mediation. A mediator can get away with this once or twice but they will soon get a reputation as someone who pressurises parties into agreement during the process and then this means parties will avoid mediation. Advantages of mediation is that the process is neutral, not binding and informal and once you turn into a ‘naughty students being scolded by the headmaster’ vibe then both parties will just disengage.