Civil Engineering Reference
In-Depth Information
opinion on the likely outcome if the case goes to court. It differs from a
party obtaining counsel's opinion in that the neutral is jointly instructed
and receives submissions from all sides. This is not necessarily a quick or
cheap process as it usually involves a significant amount of paperwork,
which has to be prepared and then read and considered. The ENE neutral
is therefore usually a retired judge! Following the evaluation, the parties
attempt a negotiated settlement.
2.2.4
Mediator recommendation
Similarly, a mediator may be asked to make a non-binding recommen-
dation if the parties do not achieve a settlement in the mediation. The
mediator can only do so based upon the information given during the
mediation and, as some of that may be confidential, the mediator must
be very careful to qualify any recommendation and ensure that no con-
fidentiality is breached. Most mediators will resist a request to give
any recommendation as it is likely to change the mediator's relation-
ship with the parties and remove the possibility of keeping the nego-
tiations going in the period following the mediation. After all, one of
the key advantages of mediation is that the parties construct their own
solution.
2.2.5
Conciliation
Although mentioned in the previous section as a consensual process,
conciliation under the ACAS rules and in civil engineering disputes
also involves a solution being recommended (but not imposed) by the
neutral. This is usually preceded by a consensual process where the
conciliator tries to get the parties to reach an agreement, but if that does
not happen, s/he makes a recommendation for settlement. Again, this
is often accepted by the parties until the matter is finally resolved by the
courts or arbitrator. The ICE (Institution of Civil Engineers)
2
Conciliation
Procedure provides that any recommendation or proposal shall only be
binding on both parties if incorporated into a written agreement signed
by both parties.
2
www.ice.org.uk.
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