Mediation: The Common-Sense Approach

Alan Hendon
Mediation is a voluntary process where all parties in a dispute, work with an impartial mediator who helps them find ways to resolve their conflict.

The mediator doesn't decide who's right and who's wrong – unlike litigation or arbitration, it's not a win/lose determination. The mediator facilitates negotiation, aiming for a solution that fits the needs of both parties. Mediation has many advantages as a form of alternative dispute resolution in the construction and property industries.

The mediator doesn't decide who's right and who's wrong – unlike litigation or arbitration, it's not a win/lose determination.

The concept of mediation is becoming more widely used in the construction world, offering significant benefits over other forms of alternative dispute resolution (ADR) or civil litigation.

What makes mediation different?

A mediator's responsibility is to help the parties settle their dispute, and to be fair and equitable to all parties if it's a binding mediation. A mediator makes no decision or judgment on the outcome.

Advantages of mediation:

  • Ownership of the process - parties own the process and devise a solution. An outcome can't be forced and nothing is legally binding until settlement is agreed.
  • Schedule – parties agree their own times for the mediation session(s), which can be a joint session, shuttle discussions or online meetings.
  • Cost - considerably lower than arbitration and litigation.
  • Time – most construction mediations are conducted in one or two days, usually considerably less than civil litigation. 
  • Confidentiality – it won't appear in the media, so less chance of reputational damage.
  • Relationships – these can be maintained, which may be important for future work.
  • Success rate is high – The Centre for Effective Dispute Resolution says 75 percent of mediation cases are settled on the day or shortly afterwards.

Disadvantages of mediation:

  • Settlement is not always reached, in spite of time and cost spent. Remember, however, other options are still open. 
  • No formal courtroom rules – so the process relies on a good mediator to ensure both parties can participate fairly.

However, there's nothing to lose by going to mediation. It doesn't rule out the possibility of arbitration or litigation, if negotiation doesn't bring a successful conclusion. Mediation discussions are without prejudice as they are part of a genuine attempt to settle the dispute. The discussions can't be presented in court.

Mediation support

I'm one of Faithful+Gould's ADR group accredited mediators and I work from our Bristol office. I trained in 2009 as it was a natural step from my work as an expert witness. I find it very satisfying work, and it's good to save clients the cost, pressure and uncertainty of a court case. I've facilitated a wide variety of mediations.

I find it very satisfying work, and it's good to save clients the cost, pressure and uncertainty of a court case.

As a construction professional (my background is quantity surveying), I have the specialist knowledge needed to support clients in dispute, as well as facilitation and negotiation skills. I also enjoy supporting those members of our team who are interested in mediation. My colleague Emma Griffith-Yates, also based in Bristol, recently qualified as a mediator, alongside her master's in construction law and arbitration. Emma is now doing the mediation observations required prior to practising independently. Like me, she'll then have to do regular ongoing continuing professional development (CPD) to support her accreditation.

Faithful+Gould supports clients with all aspects of dispute management including mediation, adjudication, expert witness, claim preparation and defence, and contract consultancy.