Mediation is a highly varied process that differs from one mediation to the next and from one mediator to the next. By the time you get to the mediation, the parties have ended their pre-mediation negotiations without success. The negotiation is over but the mediation has just begun.
Mediation is a successful tool for resolving construction disputes. There are two types of mediators, one type is a facilitator and the other is an evaluator – an interest-based mediation and a rights-based mediation. The major difference between the two is that in an interest-based mediation, the mediator will not usually deal with the hard facts and what the ultimate outcome might be. I am of the view that experience and knowledge of the subject matter of the dispute is absolutely essential if you want to truly achieve a mediated settlement of a construction dispute. I tend to rely heavily on a mediation that deals with the facts which have created the dispute and hone in on the probable outcome of the dispute in the event that the case goes beyond mediation. As an evaluative mediator, you have opinions and you must not be afraid to express those opinions.
Although the process is not one that seeks to adjudicate the dispute in any formal sense, as a rights-based mediation, you must have a grasp of the facts and a grasp of the applicable law in order to steer the parties to arrive at a settlement that takes in the upsides and the downsides of their respective positions. Parties must think about risk realising that successful mediation eliminates the risk of a trial and the uncertainty of success. A mediator should put the parties into a position to make a meaningful choice between continuing down the path which will lead to a trial or accepting the best possible settlement option available.
A rights based mediation provides a critical opportunity for the parties to see all sides of the story contrasted with theirs. Eventually, the parties should recognise that settlement is the best choice and that can only be arrived at as a result of several evaluative sessions taking place during the course of the mediation.
I do not offer an early evaluation of the case, allowing the parties to have their catharsis in the first caucus session. In the next session, we'll explore the correctness of each party's position which may be standing in the way of a possible settlement. It is at this time that an evaluation of the case, in my respectful opinion, becomes absolutely necessary. This is the type of approach that Martin Teplitsky, Q.C., in his paper Mandatory Mediation calls "confronting the reality of your alternatives".
But what if neither side is prepared to settle after several hours spent trying to bring them together? One of the solutions I try to use, as have others, is the mediator's proposal which should only be used at the end of the negotiating process in order to break the impasse. The mediator's proposal means there is no winner and no loser. The mediator's proposal, to be effective, can only be done after all of the facts and issues have been canvassed in caucus with the parties and they have been given their options as to likely outcomes if the case proceeds further. The parties must be willing to accept the concept of such a proposal.
Sometimes, the only issue is the number but there are occasions, especially in complex cases where other terms and conditions must be part of the proposal. For the purposes of this article, the only issue that I will deal with is the number. Once the mediator's proposal is established and communicated, the parties are given a reasonable period of time for determining its acceptability and delivering their confidential response to the mediator. I deliver the proposal to each counsel and allow 15 minutes for the parties to determine its acceptability or not and delivering their confidential response to me.
I do not find it useful to allow the parties to leave the mediation session to have an opportunity to consult with other people. This destroys the mood and could be very harmful. One of the main terms of my agreement to the mediation is that the parties have a person or persons attend who are authorised to settle or at least, the parties must have access to someone who is authorised to settle.
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Previously published in Construction & Real Estate 2016 Expert Guide.
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.
