Civil Engineering Reference
In-Depth Information
2.1
Consensual methods of resolving disputes
2.1.1
Negotiation
Negotiation is the best and most efficient method of resolving disputes.
It involves fewer people, takes less time and usually results in strength-
ened relationships. It is something we all do all the time, even if we
do not recognise it. The best negotiations involve effective communi-
cation and a willingness to compromise, and result in the negotiating
parties' needs being met. If one or more of these is not achieved then the
negotiations usually deadlock. Negotiations can be public or private,
depending on their nature and the wishes of the parties.
2.1.2
Conciliation
Conciliation is a term that is often confused with mediation. Unfortu-
nately, in the UK it has several different meanings depending on the
sector of dispute. As a consensual process it is often used in sectors such
as the health service and some employment disputes as an informal
stage in the complaints process. If negotiations between the complainant
and the doctor/authority/employer do not achieve a settlement, a third
party is brought into the discussions to facilitate a settlement. Concilia-
tion in this context is usually a private process. However, conciliation in
the construction industry is a more formal and structured process and
occurs later in the spectrum.
2.1.3
Mediation
Mediation is a more structured form of assisted negotiation. It is a volun-
tary (unless required by contract), flexible process within a framework
of joint and private meetings where the mediator helps the parties clarify
the key issues and construct their own settlement. Most mediations last
a day, and the vast majority settle on that day. Since the Civil Procedure
Rules (CPR) were introduced in 1999 (the Woolf Reforms), mediation
has become a mainstream process in the UK.
Many courts now have a fixed-fee, time-limited mediation scheme
and the courts often give a strong nudge to the parties to use this vol-
untary process. Indeed, in what it considers to be appropriate cases the
commercial court virtually insists on parties taking their case to me-
diation before trial. Since the Woolf Reforms the court is seen as 'the
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