Civil Engineering Reference
In-Depth Information
CHAPTER THREE
The Case for the Mediation of
Construction Disputes
This chapter argues the case for mediation for an industry that not only
has a tradition of arbitration and litigation but has also in recent years
readily embraced adjudication. The last chapter argued how inefficient
and unjust these dispute resolution processes are, and what follows
are the compelling reasons for the construction industry to embrace
mediation as the preferred method of resolving disputes in the future.
3.1
Better deals
The fact is that, whether negotiating settlements to disputes or just
negotiating commercial deals, these deals are usually better when an
independent third party is involved.
Why is it that this dynamic gets better deals through mediation than
through other forms of dispute resolution? Consider these reasons:
No gains are left unknown or unused (see 'Mediator added value'
below). Parties who are negotiating will never be totally open and
transparent with the other parties. The perception is that, by being
totally open, they will be disadvantaged and so the deal will not be
as good as one negotiated with their needs concealed. However, a
trusted independent third party can be given sensitive information
in confidence by all sides, and so will be in the unique situation of
seeing where needs are common and where some things are cheap
concessions to one yet valuable gains to the other, and will be able to
ensure that when the deal is done, everything has been included.
Mediation provides the opportunity for the whole story to be told,
and therefore for wiser deals to be made in the full light of that whole
story. Mediation creates a unique forum: a group of people that is
gathered with the express intention of finding a resolution to the
dispute. It is very unlikely that the same people will have gathered
together before - even those on one side, let alone from all sides to the
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