Mediation was first introduced to the United Kingdom in the early 1990s by a small number of construction solicitors who had encountered it in the USA. It was rapidly adopted by the Technology & Construction Court and also by the Family Court. Over the last 20 years it has become a mainstay of litigation in England and Wales and is central to litigation in the construction industry.

The Pre-Action Protocol issued by the Technology & Construction Court is the only protocol which stipulates that the parties must meet further to the exchange of pre-action correspondence to seek to resolve their differences. Whilst the protocol does not specify use of mediation, most solicitors, including this practice, always seek to make the meeting a mediation.

There are a number of mainstream mediation providers of which CEDR is the best known.

It is our experience that many cases settle through mediation and if not at the mediation itself then often shortly afterwards.

There is no right or wrong time to mediate; if there is willingness to meet and agree then a mediation can take place as early as prior to commencement of proceedings and even as late as during the course of a trial.

Mediations are often binary between two litigants to a dispute but can involve multi-party mediation which is particularly successful where there are a number of parties to a claim. Mediation itself is often likened to 'shuttle diplomacy' where the two parties meet with the mediator at the beginning of the day and the mediator then 'shuttles' backwards and forwards between the parties trying to reach a compromise.

In addition to mediation there are a number of other forms of ADR including Early Neutral Evaluation where senior representatives of the two parties in dispute meet to review the claim between them, often with the assistance of a third party.

Similarly, the existence of Dispute Review Boards has become increasingly common in large contracts where the contract provides the identity of one or more representatives of each party and one or more external advisors who will form a dispute review board to make recommendations or even a finding.

Arbitration is still considered to be a form of ADR, although it is now much more akin to High Court litigation, the difference being that the court will adopt a rigid timetable whereas arbitration can be much more flexible. Arbitration also differs from the court in that there may be one arbitrator appointed by the parties or the parties may each nominate an arbitrator and the two arbitrators each nominate a third arbitrator to form a three person tribunal.

Originally published 24.07.2023

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