Using mediation to resolve construction disputes

Using mediation to resolve construction disputes

To what extent is mediation being used to resolve construction disputes? David Evans, legal director, solicitor and mediator in the construction team at Blake Morgan and mediator at Oxford Mediation, considers that, while mediation is still not commonly used in construction disputes, it will likely become more popular due to the high cost of adjudication and gradually increasing awareness of the benefits and flexibility of mediation.

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What are the current trends in relation to mediation in construction disputes?

Mediation has moved on a lot over the last 15 years or so. But it is still not routinely used by construction professionals. The process has changed. Mediators are now more likely to be lawyers than ever before and very often counsel, and even leading counsel, are brought in to represent parties. Counsel (and solicitors) can feel obliged to demonstrate their value to their clients and ‘grandstand’ from time to time. Sometimes lawyers get in the way of the settlement their clients could achieve, and the mediator’s role can include making them see that.

Adjudication (like arbitration before it), is becoming very expensive, and far too expensive for the significant number of construction disputes where less than £100,000 is at issue. In my view the particular opportunity for mediators is in these lower value disputes, and I think this is the range where we will see rising numbers of mediations. However, mediation (as opposed to adjudication) is cost effective for disputes of any value, is attractive in comparison to the alternatives, and is worth trying.

How common is the use of mediation in resolving construction disputes?

Disputes are common events, but for individuals are relatively rare. Many construction professionals go through the whole of their working lives without encountering a serious dispute which can’t be settled through negotiation.

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