Civil Engineering Reference
In-Depth Information
CHAPTER TEN
The Mediation Landscape
It is inevitable that a flexible process based on common sense will be
developed into other areas. Inevitable too that it will be moved fur-
ther up the construction process to the currency of the project (project
mediation) and even to the negotiation of the project itself (deal medi-
ation). The skills involved in helping parties reach a settlement - their
settlement - are the same at the start as at the end. Establishing lines of
communication, building trust, fostering cooperation and achieving the
best deals are as valuable, indeed more valuable, at the birth of a project
as in mediating disputes. And those same skills can be applied through-
out the project to ensure that when problems occur they do not escalate
into full-blooded disputes. The mediation process and skills can be used
at the beginning, the middle and the end. How sensible! Yet how rarely
does it happen.
10.1
Deal mediation
10.1.1
What is it?
Deal mediation is the introduction of an independent third party into
the negotiation process, to help the negotiating parties achieve the best
outcome. In 1999 Mike Hager wrote a paper
1
advocating deal medi-
ation in international business and then developed the idea of a new
profession, mistakenly as a new legal specialist (but he was then Direc-
tor of the International Development Law Institute in Rome, so he can
be forgiven - whilst some lawyers may have skills in facilitating busi-
ness negotiations, it is rarely a natural or instinctive quality, whereas
facilitators from a business background are likely to be more naturally
suited to such a role). The principles of deal mediation are nevertheless
1
Hager and Pritchard, 'Deal Mediation: How ADR Techniques Can Help Durable Agree-
ments in the Global Markets',
Foreign Investment Law Journal
Vol. 14, Spring 1999.
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