Civil Engineering Reference
In-Depth Information
Mediation can be initiated at any time by either of the parties inviting the other to
accede to the process, or by having one of the mediation bodies open up dialogue.
Parties may be represented by lawyers through the process, but that is not essential.
Normally,thecostsofthewholeprocessaresharedequallybytheparties.
18.1.2 Mediation and the SBC
Article 9.1 was a significant new provision in the 2005 edition of the SBC and the
SBC/DB. It provided that the parties may by agreement seek to resolve any dispute
or difference arising under the contract through mediation. This would be implied
in any event since parties can agree to mediate any dispute at any time. However,
adding reference to it is useful in directing parties to consider this as a potential way of
resolving disputes. hat provision was strengthened in the SBC and the SBC/DB 2011
Edition with the clause now stating that each party is to give serious consideration
to any request by the other to refer the matter to mediation. It is still not mandatory
but is intended to be a strong encouragement to parties to consider mediating. This
supplements the SBC Schedule Part 8 paragraph 6 and the SBC/DB Schedule Part 2
paragraph 12 (Supplemental Provisions) which provide for an escalating dispute res-
olution provision.
This approach is reflective of the increasing move towards early identification of
disputes and their avoidance and resolution at an early stage and without the need
forthirdpartyinvolvement.Itisinlinewiththeincreasedemphasisoncollaborative
workingandtheprovisionsonthistobefoundwithintheSBCandtheSBC/DB.
18.1.3 Mediation and the NEC3
The NEC3 contract contains no reference to mediation. It is of course still open to
parties to agree to refer disputes to mediation should they wish to do so.
18.1.4 The approach of the courts to compelling mediation
Mediation is developing in Scotland. The Scottish courts have become more
favourably disposed towards mediation, though they have not yet embraced medi-
ation in the way courts in other jurisdictions have. In the Court of Session, the
Commercial Court Practice Note No. 6 of 2004 encourages parties to consider ADR
before an action is raised. In the Sheriff Court, there are a number of mediation
initiatives. These include a provision in the Sheriff Court commercial action rules
that a sheriff is under a duty to secure the expeditious resolution of the action by
meansofarangeofordersincludingtheuseofADR.InSmallClaimandSummary
Actions (up to £5000) the Sheriff is under a duty to seek to negotiate and secure
settlement of the claim at the first hearing of the case.
The 2009 Report of the Scottish Civil Courts Review chaired by Lord Gill recog-
nizedthatmediationandotherformsofADRhaveavaluableroletoplayinthe
civil justice system. It recommended that the courts ensure that litigants and potential
