Construction law folder

Construction Mediation

What is construction mediation?

Mediation has enjoyed a tremendous amount of growth since Lord Woolf’s report back in the late 1990’s ‘Access to Justice’, not least because it has become the norm under the Civil Procedure Rules’ Pre-Action Protocol, and refusing to participate in mediation can have severe consequences on the ability of the successful party to secure costs should the matter proceed to litigation.

Mediation can also be extremely effective at settling disputes early, and notwithstanding the requirements under the Civil Procedure Rules, mediation can be an attractive method of resolving disputes quickly. However, mediation does require the agreement of both sides to participate, but is by far the cheapest method of dispute resolution when it is successful, save for direct party negotiation.

The mediation process is quite simple. The parties either agree on a third party to be a mediator or in the absence of an agreement, a suitable body can be approached to select the mediator. Once the mediator has been appointed, all three parties agree on a date and venue for the mediation to take place at. The venue can be a neutral venue, for example a hotel, or can be provided by one of the parties, and three rooms are reserved on the date at the venue, one room each for the parties in dispute and one room for the mediator.

The mediator is there to assist both sides come to come to an agreement. However, the mediator must not offer his view as to a particular party’s strength of case. Mediation is a voluntary process, thus, it is imperative that both parties agree and are willing to negotiate to reach a settlement. It is a confidential process where the terms of discussion are not disclosed to any party outside the mediation hearing.

The cost of the mediator and the venue is usually agreed beforehand and is usually split on an equally shared basis, regardless on any outcome of the mediation.

Mediation can be tailored to suit any size of dispute about any issue, whilst the overall success rate for mediation is very high. Usually a mediation hearing extends to just one day, but it is not unusual for the parties to enter into negotiations after that mediation has concluded. If an agreement is reached, then the parties’ lawyers will normally draft up a Settlement Agreement for the parties to sign at the time.

Construction mediation solicitors

Michael Gerard Solicitors has experience of mediation and can manage the whole process from drafting the position statement to drafting the Settlement Agreement – and everything in between!

We can also identify and engage suitably qualified mediators or one of our staff can act as a mediator.

From experience, we understand that there are less visible costs to disputes such as directors and staff time, adverse publicity, damage to reputation, low morale and missed opportunities. In our experience, many obstacles in construction projects could be overcome if the parties are willing to go to mediation.

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