The popularity of mediation continues to grow in both the construction industry and other fields, as it often enables parties to settle their differences where that would not otherwise be possible.

A successful mediation means that the parties avoid adversarial legal proceedings, such as arbitration and adjudication, either altogether or at least from running all the way to their conclusion.

CCC has assisted many parties with mediation, resulting in significant savings in time, energy and expense, and allowing them to draw a line under the risk that formal adversarial proceedings always entail. They can then get back to their core activities, rather than becoming bogged down in long-running disputes.

What is mediation?

Mediation is a form of facilitated and structured negotiation. A trained mediator is a neutral, independent and impartial third party that sits between the disputing parties and assists them in resolving their dispute.

A mediator must possess a different set of skills to those typically required by a judge, arbitrator or adjudicator. Mediation is consensual and it requires the agreement of both sides to participate. Parties cannot be forced to accept the outcome of a mediation. The mediator will instead seek to manage and direct the negotiations between the parties, and facilitate them in reaching a settlement that is mutually agreeable.

Mediation is by far the cheapest method of dispute resolution when it is successful. It can be tailored to suit any size of dispute and be about any issue. Mediation can be conducted before or during formal legal proceedings.

The content of the mediation, including discussions that take place in it, will be confidential and without prejudice, which means that parties cannot rely on what is said in the mediation outside of it. Admissions made in a mediation cannot later be used against the party that made them.

Before a mediation

The foundations of a successful mediation are laid before the parties attend the mediation itself. Time must be taken so that the parties understand and engage with their position and its strengths and weaknesses. A mediator will be agreed and often a formal agreement to mediate is entered into, so that there is clarity in relation to the mediation procedure, confidentiality, and authority to settle.

A mediator will often ask for a short summary of the parties’ positions a few days before the adjudication. Such a summary will typically be much shorter and more ‘high level’ than detailed submissions in formal proceedings would be, and the mediator will not want to receive all of the documents that a judge, arbitrator or adjudicator would require.

What happens at mediation?

Many commercial mediations are concluded on one day. The procedure is flexible and will be adapted by the mediator to suit the dispute and the parties. Most mediations commence with a joint (‘plenary’) session, then the mediator will decide how to allocate time between further joint sessions and individual (‘caucus’) sessions with the parties, in which their positions and desired outcomes will be explored. Sometimes the mediator may wish to have joint sessions between particular persons, such as experts, or just with the principals of the parties.

Mediation is non-binding unless and until the parties reach an agreement. At that point a binding document can be drafted to record the agreement reached in the mediation so that the parties are held to it in future.

What happens after mediation?

Even where no binding agreement is reached on the day, mediations often result in parties settling their differences afterwards, or in a narrowing of the issues between them, meaning that later formal proceedings can be resolved more efficiently.

Free initial enquiry

We can assist parties in successfully navigating the mediation process, and engage mediators who have both training and experience in construction disputes. Members of our staff are also trained to act as mediators. Our consultants have mediated disputes worth up to £3 billion.

We offer a one hour free initial consultation to new clients. Please contact us by phone, email or using our contact form for a free initial consultation to discuss how we can help you in relation to mediation.