Civil Engineering Reference
In-Depth Information
spent in preparation is not an issue (at least not for the mediator) but
the party has little or no control over the hours spent.
Case study
An American mediator successfully mediated a large two-party
case where the parties acknowledged that they saved millions of
dollars by settling in mediation. Following settlement, the media-
tor wrote to the parties requesting an additional fee that reflected
the savings made. One paid, one complained and went to the press.
The mediator's reputation was not enhanced by the outcome!
Actually success-fee mediations have been known in the UK,
whereby the mediator (or the mediator provider) only gets a fee
if the case settles. This is a practice that most mediators would con-
sider to be unethical because the mediator then has an interest in
the outcome and so cannot be considered totally independent.
4.4.5
Co-mediation
It is worth mentioning co-mediation at this stage although it is dealt with
in more detail in Chapter 8. Co-mediation is underused in the UK but -
I think - it is ideal for multi-party cases (and therefore suited to many
construction cases). It involves two experienced mediators working to-
gether as a team. This not only brings another mind to the problems but
also enables the time to be used more efficiently as the mediators can
work separately in private sessions. One of the weaknesses in mediation
is the 'idle time', particularly in multi-party mediations. If a sole medi-
ator spends half an hour with each party in a six-party mediation, it is
three hours before the mediator is able to return to the first party. This
does nothing for momentum or energy or indeed for keeping the parties
engaged in the process. Co-mediation can overcome that by the media-
tors separating and seeing parties individually. It results in a much more
efficient process at very little extra cost.
There are a few 'rules' to consider when choosing co-mediators:
Use an established pairing. To be most effective, the mediators must
be familiar with each other and able to work in harmony. Parties do
not want two competing egos mediating their case.
Decide what is needed from the mediators in style, experience and
combination. For example, non-lawyer/lawyer, female/male, spe-
cialist/generalist.
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