Civil Engineering Reference
In-Depth Information
last resort' for resolving disputes, although in a ground-breaking case,
Hurst
v.
Leeming,
1
the court did recognise that there are circumstances
in which a party is justified in rejecting mediation.
Besides returning the control of their dispute to the parties, one of the
main advantages of mediation is that the settlement can include what-
ever the parties decide (provided that it is legal). There is no outright
winner or loser; all parties have to say 'Yes' for the deal to be done.
There are variations of mediation, some of which are mentioned later.
One used in the motor industry (often in manufacturer/dealer disputes)
is known as the
executive tribunal
, whereby the senior person from each
party sits with the mediator whilst the parties present their case; the
executives then retire to negotiate a settlement, with the mediator's as-
sistance. Whilst not a true mediation, the principle of having an inde-
pendent person facilitate negotiations is common to both.
This principle has been developed in non-contentious negotiations,
called
assisted deal-making
,or
deal mediation
, which are dealt with in a
later chapter. Again, the negotiators use an independent third party to
facilitate their negotiations in order to get the best deal (for all sides).
2.1.4
Arb/Med and Adj/Med
This is a mediated outcome of an adjudication or arbitration. The arbi-
trator or adjudicator does make a binding decision but, with the con-
sent of the parties, does not immediately (or ever) reveal it to them but
invites them to negotiate a settlement rather than have the decision im-
posed upon them. If they do not want to, or fail to reach agreement, the
neutral's decision is delivered and is binding. If the parties agree to a
mediation, they negotiate, with the help of the now mediator, their own
settlement. It is then put in writing, signed and becomes binding. The
arbitrator's/adjudicator's decision is not revealed.
2.1.5
Court settlement procedure
In 2006 the Technology and Construction Court introduced a scheme
whereby the case judge, after case management conferences and a sig-
nificant amount of preparation and reading-in, offers to 'mediate' the
case for the parties. If the parties agree, but no settlement is reached, the
1
Hurst
v
. Leeming
, Lightman J 2002.
20
