Civil Engineering Reference
In-Depth Information
interpretation of the relevant law as applied to the particular dispute
and then makes a decision as to who wins and who loses. A trial can
take several days (or weeks) and it is not unusual for the cost to each
party to exceed the amount in dispute. Although court lists have short-
ened (partly because of early resolution through effective ADR), it is
still usual for a case to be heard a year or more after proceedings have
started. One of the disadvantages of taking a case through the courts is
that the result can only be an outright winner and an outright loser, and
the redress is financial damages (or an injunction, if that is the issue)
and award of costs.
2.4
Why traditional methods fail the parties
2.4.1
Inherent injustice
To my view (as a non-lawyer!), there is an inherent injustice in any
process which imposes a decision on the parties. The outcome is usually
that there is an outright winner and an outright loser, and the loser
generally pays the costs incurred by the winner. But life is not about
being totally right or totally wrong. There are endless 'truths' between
the extremes. Everyone sees the same facts and events differently, for
a whole lot of reasons. It does not necessarily mean that one person's
view is more right or wrong than that of the others - just different. So
outright winners and losers mean that differences cannot be considered.
The person making the decision must believe one person's version of
the truth above the others and then make them the outright winner. Not
by 10% or 25%, but winner by 100%. Not fair!
2.4.2
Cost and time
Direct negotiation aside, there is no dispute resolution process that is
more cost-effective than mediation. Mediations rarely take more than a
day and the mediator fee, including preparation, is usually no more than
a solicitor partner's day fee but, of course, it is shared equally between
the parties. Admittedly each party has to prepare for the mediation and
needs to bring a (small) team on the day, but there is nothing in the prepa-
ration that would not otherwise be done for another process, so even if
the mediation does not settle, it is never a wasted expense. The objection
to mediation - that it just adds another layer of expense - is totally mis-
guided. However, one thing is certain: litigation and arbitration (and,
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