Civil Engineering Reference
In-Depth Information
In a later dispute between the same parties,
Multiplex Constructions (UK) Limited
v.
Cleveland Bridge UK Limited, Cleveland Bridge Dorman Long Engineering Limited
(2008), the same Judge made further comments under a 'lessons to be learned' section
in his lengthy judgment. He said:
[F]ollowing that judgment, the parties attended a Mediation, however, instead of
reaching a sensible resolution at that Mediation, the parties spent the next two years
litigating about two matters
Aresolutionbroadlyalongthelinesofthisjudg-
ment could have been arrived at by the parties at fractional cost, if both parties had
instructedtheiradviserstogothroughtheaccountstogetherinaconstructivespirit
takingastheirstartingpointthecourt'sdecisiononissues1to10.helessonforthe
future which may be drawn from this litigation is that parties would be well advised
to use the dispute resolution service offered by the Technology and Construction
Court in a more conventional and commercial manner than has been adopted in
this case. Once this court has decided questions of principle, the parties can save
themselves and their shareholders many millions of pounds by instructing their
advisers to agree reasonable figures for quantum, if necessary with the assistance of
a Mediator unconnected with the court.
…
More recently, in the English Court of Appeal case of
Ali Ghaith
v
.IndesitCompany
UK Limited
(2012), the court was critical of the parties for not trying mediation,
stating:
It is a great pity that Indesit did not pursue the option of mediation
[Counsel]
informed us that it was not pursued because the costs had already exceeded the
likely amount in issue. This is an inadequate response to the court's encourage-
ment of mediation since a full day in this court will inevitably result in a substantial
increase in costs.
…
he court went on:
No-one should underestimate the new dynamic that an experienced mediator
brings to the round table. He has a canny knack of transforming the intractable
intothepossible.hatistheartofgoodmediationandthatiswhymediation
shouldnotbespurnedwhenitisofered.
The Government has also endorsed mediation. In March 2001, the Chancellor of the
Exchequer announced an 'ADR Pledge' in which all government departments and
agenciesmadecommitments,includingthatADRwouldbeconsideredandusedinall
suitable cases, where accepted by the other party. A number of government initiatives
have followed since the pledge was made.
Under the English Civil Procedure Rules, there is an overriding objective requir-
ing the court to actively manage cases, which includes encouraging the use of ADR
procedures to prompt an earlier settlement.
The courts have tended to stop short of compelling parties to mediate as it is con-
sidered this would amount to an unacceptable obstruction on their right of access to
