Civil Engineering Reference
In-Depth Information
compared to the cost of each party's legal team. Except perhaps for the
lowest value cases, mediators should never be chosen on cost alone but
on experience, reputation, specialism perhaps. The trouble with using
an independent is that they are usually nominated because someone
had a good experience (or even an experience that was not bad) and so
are considered to be safe, whereas they may not be the best mediator
for the particular case. At least some of the providers, especially ones
who also train mediators, are able to refresh their panels and spot and
develop the new stars.
There are now many mediation schemes in existence, particularly for
low-value cases. In addition to the mediation schemes offered by most
courts, the Construction Conciliation Group (CCG) offers a fixed-fee,
fixed-time package with a binding decision if the case does not settle
in mediation and the Royal Institution of Chartered Surveyors runs a
scheme for the settlement of neighbour (boundary) disputes which is
a three-stage fixed-fee process offering report, mediation and expert
determination. These schemes serve a useful public service and offer
parties a way out of their disputes without running up huge fees, but
they are for the small-value disputes and so not relevant to mainstream
mediation.
Sometimes, in the very large high-profile construction mediations, a
'beauty parade' of mediators is staged, where potential mediators are
interviewed. Sometimes parties want a Big Name as mediator (someone
who has not necessarily been trained and accredited but whose grav-
itas is seen as being important). Often this is a form of game-playing
and/or ego-massaging and just clouds the issue. Similarly the trend of
choosing a specialist mediator - it might give comfort to the parties
that the mediator comes from their environment and so will under-
stand their problems and speak their language, but there the benefit
ends and the possible disadvantage of the mediator getting seduced
by the detail because it is the mediator's field of expertise is very sig-
nificant. There is only one thing worth remembering when choosing
a mediator: a good mediator can mediate anything. So find a good
mediator.
One further comment on the choice of the mediator - beware of serial
users. Lawyers, insurers and some other repeat users of mediation have
their favourites: tried, tested and with good settlement rates. The dan-
ger is that the mediator can get comfortable, used to the party's style
of negotiation and their tactics. Worse, the party can get used to the
mediator's own style and tactics, and so manipulate her or him to their
own advantage.
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