UK: Mediation In Construction Disputes - An Interim Report

Last Updated: 26 June 2007
Article by Nicholas Gould

The use, and in particular the effectiveness, of mediation in construction disputes is usually based upon anecdotal evidence. In order to address this problem, an evidenced-based survey commenced on 1 June 2006. This funded project is being conducted by King’s College, London.1 The research is being conducted not only with the support of the Technology and Construction Court ("TCC"), but also with their assistance. The aim of the research is to:

  1. Reveal in what circumstances mediation is a real alternative to litigation, in other words a value-added alternative that settles the dispute;
  2. Assist the court to determine whether, and at what stage, it should encourage mediation in future cases; and
  3. Identify which mediation techniques are particularly successful.

Survey forms are issued to all of the participants of litigation in the TCC, which has concluded after 1 June 2006. The survey is, therefore, almost at its halfway point. This article is merely a summary of the interim report based upon the data collected in the first quarter of the survey period.

The Survey

The representatives of each party that has settled, resolved or received a judgment from the TCC after 1 June 2006 has or will receive a survey form. Form 1 applies where a case has settled. Form 2 applies where a judgment has been given. Both surveys enquire whether mediation was used, the form that it took and at what stage in the litigation process the mediation occurred. Specific details about the dispute resolution process are then collected.

Interim Results

During the first six months, a response rate of 25.5% was recorded. An initial analysis of the responses shows that 32% of those disputes that settled were as a result of a mediation. This is more than had been anticipated. Of the remaining 68%, 61% settled by conventional negotiation while 7% settled as a result of some other process.

The nature of the cases dealt with is also interesting. A noticeable proportion of the cases related to defects (28%), design issues (15%) and professional negligence (15%). A survey dealing will similar categories of disputes arising from the Technology and Construction Court some ten years ago revealed that the majority of the issues leading to litigation in the TCC, were those relating to payment, variations, delay and site conditions.2

During the past ten years there has been a reduction in the number of cases commencing in the TCC. Some of this in part relates to the introduction of the pre-action protocols, also in part to the increase in mediation, but undoubtedly, due also to the increase in adjudication. Perhaps it is the case that time- and money-related issues, often prevalent in construction disputes, are now being dealt with by way of adjudication, and during the pre-action protocol process, while defects, design and negligence are remaining within the court’s domain. This might be because those issues are frequently not only more complex, but often multi-party and therefore not easily suited to adjudication.

Respondents were asked to identify at what stage litigation settled or was discontinued. This is particularly interesting as many will often have an anecdotal view as to the time at which disputes settle. Anecdotally, many believe that most settlements are reached on the court steps. Clearly, this is not the case. There are a variety of "pinch points" in the litigation process. According to the respondents, those pinch points are:

  • During exchange of pleadings (33%);
  • During or as a result of disclosure (14%);
  • As a result of a payment into court (10%); and
  • Shortly before trial (24%).

Of the settlements reached, 81% were reached at one of the above stages. The remaining 19% occurred somewhere between the issuing of the claim form and the issuing of the judgment.

Of the mediations undertaken, 81% were as a result of the parties’ own initiative, just 5% as an indication of the court, and 14% as a result of an order of the court. Barristers (48%) and construction professionals (38%) were the most frequently encountered mediators, with solicitors only represented by 14%. No other professionals were represented. No judges had been appointed as a part of the court settlement process according to the respondents. This analysis is only based on the first quarter of the survey period, so the final results may of course reveal a different picture.

Many of the respondents believed that costs had been saved as a result of mediation. In effect, the financial amounts saved represented the point in the litigation at which the dispute is settled. Some suggested that the cost savings were between £200,000 and £300,000. No doubt, those reflected the disputes that settled early during the pleadings stage, whilst those who suggested that the savings were £25,000 or less perhaps represented those disputes that settled shortly before trial.


Mediation is clearly being used successfully in construction disputes. A limited number of mediators are being used repeatedly by those parties that have commenced or are responding to litigation in the Technology & Construction Court. The mediations that are being undertaken are on the parties’ own initiative. However, mediations are not occurring at one particular point in the litigation process, but at several distinct points, namely: pleadings, disclosure, payment in and shortly before trial.

These results are only a snapshot, based upon an analysis of the first quarter of the research period. The research continues and will conclude in the summer of 2008. A more detailed report will be available towards the end of 2008.

For further information, the Interim Report can be downloaded at


1 King’s College, London gratefully acknowledges the Society of Construction Law, the Technology and Construction Solicitor’s Association, Her Majesty’s Judges of the Technology and Construction Court and Fenwick Elliott LLP for research funding, ongoing support and guidance. The research is being undertaken on a daily basis by Aaron Hudson-Tyreman. Thanks must also go to Carolyn Bowstead, the TCC Court Manager, for her ongoing assistance.

2 Gould, N. and Cohen, N. (1998) "ADR: Appropriate Dispute Resolution in the UK Construction Industry" Civil Justice Quarterly, volume 17, April, Sweett & Maxwell.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nicholas Gould
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.