Civil Engineering Reference
In-Depth Information
emotionally attached to what they see as justice (and therefore be a
force against a commercial settlement). One option may be to have
one day for those that lived the project on a day-to-day basis (a 'his-
tory' day) and then have another day for the decision makers and
their legal team to negotiate the deal.
Consultants (architects/engineers/surveyors/project managers)
may have their own agendas. Any possibility of blame being at-
tached to them will invariably cause a defensive reaction, the spectre
of potential professional negligence claims being ever present. And,
frankly, it is unrealistic to expect an architect or engineer to issue a
further extension of time or confirm some contested variations just
to enable a mediation to settle. The architect or engineer has proba-
bly spent months, if not years, protecting the client's interests and to
expect that to change in a mediation is unrealistic. So, whilst it might
be considered to be necessary for consultants to attend, be realistic
about their usefulness (and their own agendas).
Face is a real issue in disputes and it will be appreciated from the
above comments that there is a danger of people making statements
which they may eventually regret or finding themselves in a position of
being challenged and their position questioned. One of the mediator's
skills should be to anticipate and avoid such situations or at least ensure
that there is enough 'wriggle room' for people to avoid losing face. One
way of avoiding these situations is to choose a team for the mediation
that will not create such potential blockages. As mentioned in the last
chapter, deals with dignity are every mediator's aim.
One danger when deciding on the mediation team is that of tit-for-
tat. One party brings their expert; the other feels the need to reciprocate.
If one party brings counsel, it is a brave lawyer who advises against
the other bringing theirs in return. And so on. There is of course some
need to balance the teams so that one party does not bring a team of
accountants whilst the other brings a team of technicians, but lean and
keen should be the guide.
4.4.11
Authority
The decision maker is the key player in a mediation. S/he decides
whether to say 'Yes' or 'No' to the deal that is on offer. S/he comes
with authority to settle on behalf of the company/family. The media-
tor will have checked that the decision maker does have the necessary
authority to settle (although most people come with a limit - which is
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