Civil Engineering Reference
In-Depth Information
Once the papers have been read, the mediator will telephone the
lawyers and run through the mediation process (all mediators have
their preferences and so it is worth doing this even with the most expe-
rienced lawyers), settle any queries and discuss some of the background
of the dispute and the personalities involved. This is useful 'colouring'
of the canvas in preparation for the mediation and it is likely that the
lawyers will be more open about the case and their clients in this sort of
private conversation than would necessarily be the case on the day.
4.4
Preparation by the parties
4.4.1
When to mediate
In some cases even agreeing to mediate can take time. There is, of course,
a 'right' time to mediate, being the time when parties and their advisors
feel they know sufficient for the risks to be minimal yet have avoided ex-
cessive legal costs and management time. Mediating early, even before
legal proceedings are commenced, keeps costs to a minimum, but the
risks are greater. Risks that not all the important information is available.
Risks that the 'smoking gun' that is the dream of all litigators (but rarely,
if ever exists) will be missed. Risks that the deal struck in the mediation
will not be the best one available. But on the other hand, there is nothing
worse than mediating a case in which the costs exceed the claim (or the
settlement). It becomes a mediation about who pays the costs, not
the claim. So when to mediate should be a commercial decision. It is
the hidden costs of 'wasted' management time that should be the main
driver. Time spent in justifying or defending a claim is time lost for
wealth-generation.
Some parties will use this as a tactic, either delaying and so putting
the other party under pressure of mounting costs, or being premature
and so putting the other side at risk of costs sanctions by refusing to
mediate at that time. The UK courts are very positive about commercial
cases going to mediation so parties will have to consider it sometime.
This is a powerful argument to reluctant parties for it is not a matter of
'Shall we mediate?' but much more one of 'When shall we mediate?'
4.4.2
How long should the mediation take?
It is usually the parties (or rather their lawyers) who decide on the
length of the mediation. Most take a day but construction disputes are
usually complicated, have several parties and involve a lot of detail,
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