Civil Engineering Reference
In-Depth Information
judge/arbitrator/adjudicator has to make a decision, but how efficient
or satisfactory that settlement is must be open to question.
And the reason for this is that the basis of argument is flawed. The
matter should not be about legal rights and remedies; it should be about
listening to the other party's version of the truth and trying to under-
stand why they feel so strongly about it; it should be about uncovering
their needs and working out a solution that meets them; it should be
about letting them tell their 'story' and creating an opportunity for you
to tell yours. It should be about seeing the problem as being a problem
for everyone, and the best solution as one in which everyone is able to
contribute and say 'Yes'. That cannot be done in court or in arbitration
or adjudication. One party wins, another loses. That's the law.
Mediation is an assisted commercial negotiation. The argument is
commercial, and commercial people are in control. It gives the parties
the power to make the decision over what structure a settlement might
have and what the details are to enable all parties to agree. That's why
it works.
3.10
The arguments against mediation
It is worth ending this chapter with a note on the most common argu-
ments against using mediation to resolve construction disputes.
3.10.1
It adds another layer of cost
It is sometimes said that mediation causes 'yet another layer of costs'
and that this is a reason to avoid it. There are at least two arguments
against this: by far the majority of mediations settle, so it is a cost worth
investing; the major cost is not the mediator but the legal team, and that
is a cost that will be incurred in any event if the case proceeds to trial or
arbitration. Further, if the case is one of the few that does not settle in me-
diation, the parties' understanding of each other's case and the drivers
behind their positions is usually so much greater that it leads to, at the
very least, a simplification of the arguments and, more usually, to a sub-
sequently negotiated settlement. So the chance of the cost of mediation
being a wasted cost is so slim that it should not even be considered.
3.10.2
It is too 'touchy-feely'
I suppose 'touchy-feely' is meant to indicate that mediation is not
'manly' enough for real people. The term is the biggest insult that can be
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