Mediation in construction - Revision history

Editor at 19:26, 6 January 2022

2022-01-06T19:26:48Z

← Older revision		Revision as of 19:26, 6 January 2022
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	This article was created by --[[User:University_College_of_Estate_Management_(UCEM)\|University College of Estate Management (UCEM)]] 16:23, 11 December 2012 (UTC)		This article was created by --[[User:University_College_of_Estate_Management_(UCEM)\|University College of Estate Management (UCEM)]] 16:23, 11 December 2012 (UTC)

−	= Related articles on Designing Buildings ~~Wiki~~ =	+	= Related articles on Designing Buildings =

	* Adjudication.		* Adjudication.
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	* Dispute resolution.		* Dispute resolution.
	* Dispute resolution boards.		* Dispute resolution boards.
		+	* Evaluation of claims.
	* Expert determination.		* Expert determination.
	* Housing Grants, Construction and Regeneration Act.		* Housing Grants, Construction and Regeneration Act.

Editor at 15:53, 16 August 2021

2021-08-16T15:53:29Z

← Older revision		Revision as of 15:53, 16 August 2021
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	* Arbitration.		* Arbitration.
	* Causes of construction disputes.		* Causes of construction disputes.
		+	* Compulsory Alternative Dispute Resolution.
	* Conciliation.		* Conciliation.
	* Contract claims.		* Contract claims.

91.181.120.247 at 14:55, 6 January 2021

2021-01-06T14:55:10Z

← Older revision		Revision as of 14:55, 6 January 2021
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	* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].		* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].

−	[[Category:DCN_Definition]] [[Category:DCN_Guidance]] [[Category:Other_legislation]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]	+	[[Category:Articles_needing_more_work]] [[Category:DCN_Definition]] [[Category:DCN_Guidance]] [[Category:Other_legislation]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]

Designing Buildings at 09:41, 15 September 2020

2020-09-15T09:41:19Z

← Older revision		Revision as of 09:41, 15 September 2020
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	* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].		* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].

−	[[Category:~~Other_legislation~~]] [[Category:~~DCN_Legislation~~]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]	+	[[Category:DCN_Definition]] [[Category:DCN_Guidance]] [[Category:Other_legislation]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]

Editor at 18:13, 10 October 2019

2019-10-10T18:13:49Z

← Older revision		Revision as of 18:13, 10 October 2019
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	* Conciliation.		* Conciliation.
	* Contract claims.		* Contract claims.
		+	* Consumer.
	* Defects.		* Defects.
	* Disputes.		* Disputes.
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	* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].		* [http://www.cedr.com/ The Centre for Effective Dispute Resolution].

−	[[Category:Other_legislation]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]	+	[[Category:Other_legislation]] [[Category:DCN_Legislation]] [[Category:Property_law]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Procurement]]

Editor at 15:36, 4 September 2019

2019-09-04T15:36:31Z

← Older revision		Revision as of 15:36, 4 September 2019
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	* The role of the mediator.		* The role of the mediator.
	* Scheme for Construction Contracts.		* Scheme for Construction Contracts.
		+	* Without prejudice.

−	=== External references ===	+	= External references =

	* Tiered ADR, [http://www.ciarb.org/ Chartered Institute of Arbitrators], "Catch All" Dispute Resolution Clause.		* Tiered ADR, [http://www.ciarb.org/ Chartered Institute of Arbitrators], "Catch All" Dispute Resolution Clause.

2.26.242.173 at 20:45, 16 May 2019

2019-05-16T20:45:01Z

← Older revision		Revision as of 20:45, 16 May 2019
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	Advantages:		Advantages:

−	* It is an ~~formal~~ process.	+	* It is an informal process.
	* It can be initiated at any time agreed between the parties.		* It can be initiated at any time agreed between the parties.
	* It allows commercial relationships to be maintained during and after the dispute.		* It allows commercial relationships to be maintained during and after the dispute.

Designing Buildings at 09:19, 3 December 2018

2018-12-03T09:19:57Z

← Older revision		Revision as of 09:19, 3 December 2018
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	This article was created by --[[User:University_College_of_Estate_Management_(UCEM)\|University College of Estate Management (UCEM)]] 16:23, 11 December 2012 (UTC)		This article was created by --[[User:University_College_of_Estate_Management_(UCEM)\|University College of Estate Management (UCEM)]] 16:23, 11 December 2012 (UTC)

−	~~= Find out more =~~	+	= Related articles on Designing Buildings Wiki =
−		+
−	=== Related articles on Designing Buildings Wiki ===	+

	* Adjudication.		* Adjudication.
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	* Housing Grants, Construction and Regeneration Act.		* Housing Grants, Construction and Regeneration Act.
	* How does arbitration work?		* How does arbitration work?
		+	* How mediation can help unlock project disputes.
	* Pay now argue later.		* Pay now argue later.
	* Pendulum arbitration.		* Pendulum arbitration.

Editor at 17:10, 3 November 2017

2017-11-03T17:10:21Z

← Older revision		Revision as of 17:10, 3 November 2017
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	== Facilitative mediation ==		== Facilitative mediation ==

−	Facilitative mediation involves a neutral third party (the mediator) whose primary role is to assist the parties in reaching a negotiated solution. As a facilitator, the mediator manages the negotiation process, helping the parties overcome deadlocks and encouraging them to think creatively about solutions. They help the parties to focus on their underlying interests and concerns and move away from fixed positions that often obscure the real issues. They assist in identifying common ground and act as a reality tester, encouraging the parties to reflect realistically upon their position and the consequences of failing to reach a negotiated solution.	+	Facilitative mediation involves a neutral third party (the mediator) whose primary role is to assist the parties in reaching a negotiated solution. As a facilitator, the mediator manages the negotiation process, helping the parties overcome deadlocks and encouraging them to think creatively about solutions.
		+
		+	They help the parties to focus on their underlying interests and concerns and move away from fixed positions that often obscure the real issues. They assist in identifying common ground and act as a reality tester, encouraging the parties to reflect realistically upon their position and the consequences of failing to reach a negotiated solution.

	== Evaluative mediation ==		== Evaluative mediation ==
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	== Therapeutic/Transformative mediation ==		== Therapeutic/Transformative mediation ==

−	Therapeutic, or transformative, mediation focuses on the underlying causes of the parties' dispute with the final settlement being enhanced by an improved relationship. The mediator works to encourage the parties to vent their feelings and emotions in order to learn from one another, and hopefully repair their relationship as opposed to just arriving at a 'quick fix' compromise solution. Primarily, this approach is taken in family/social disputes but can also be beneficial in a construction situation, as it offers a real resolution to the dispute where a continual healthy relationship between the parties is a priority (where there is a Joint Venture Agreement between them for instance).	+	Therapeutic, or transformative, mediation focuses on the underlying causes of the parties' dispute with the final settlement being enhanced by an improved relationship. The mediator works to encourage the parties to vent their feelings and emotions in order to learn from one another, and hopefully repair their relationship as opposed to just arriving at a 'quick fix' compromise solution.
		+
		+	Primarily, this approach is taken in family/social disputes but can also be beneficial in a construction situation, as it offers a real resolution to the dispute where a continual healthy relationship between the parties is a priority (where there is a Joint Venture Agreement between them for instance).

	== Other techniques ==		== Other techniques ==
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	Mediations have no rigid procedure but a typical one might proceed along the following lines:		Mediations have no rigid procedure but a typical one might proceed along the following lines:

−	* The first step is for a mediator to be chosen, either by agreement between the parties, or by selection by an organisation such as CEDR or CIArb. A proposed mediator should not accept an appointment unless all parties have agreed to the appointment.	+	The first step is for a mediator to be chosen, either by agreement between the parties, or by selection by an organisation such as CEDR or CIArb. A proposed mediator should not accept an appointment unless all parties have agreed to the appointment.
−	* A date, time and venue for the mediation meeting will be fixed. Commonly the venue will comprise a large room capable of accommodating all the participants, which is used for joint sessions, and a separate room for each of the parties involved in the mediation.	+
−	* At a set time (usually two to three weeks) before the date fixed for the mediation meeting, the parties simultaneously produce written statements, together with any documents which they wish the mediator to see, and serve these on the other party or parties and the mediator. There is commonly a limit on the length of the written submissions and the numbers of documents.	+	A date, time and venue for the mediation meeting will be fixed. Commonly the venue will comprise a large room capable of accommodating all the participants, which is used for joint sessions, and a separate room for each of the parties involved in the mediation.
−	* On the appointed day for the mediation meeting, the mediator will meet all the parties in an initial joint session at which each will present a brief oral summary of their case, possibly through their legal advisers. A limit on the time allowed for each party is common.	+
−	* Each party will then retire to their separate rooms and the mediator will talk to each party in turn, either by visiting them in their separate rooms or by calling them into the main room. Such private meetings are known as 'caucuses' in the jargon of ADR practitioners. Everything that takes place in the caucuses is private and confidential and their purpose is to enable the mediator to establish his understanding of the possibilities for reaching agreement and the approach most likely to encourage settlement.	+	At a set time (usually two to three weeks) before the date fixed for the mediation meeting, the parties simultaneously produce written statements, together with any documents which they wish the mediator to see, and serve these on the other party or parties and the mediator. There is commonly a limit on the length of the written submissions and the numbers of documents.
−	* The mediator will then shuttle between the various parties as required in an effort to find a settlement to the dispute. Nothing disclosed to the mediator in confidence in the caucuses will be disclosed to any other party without the express permission of the party disclosing the information. Private meetings between the mediator and only some of the parties may take place.	+
−	* Working with the parties, the mediator will examine the issues arising in the dispute. The mediator does not take sides but they may challenge a position being adopted by one or other party. The mediator may suggest looking at the dispute from a different angle. They may test out possible ways of resolving the dispute. In short, they will examine the dispute and work with the parties to find an acceptable solution.	+	On the appointed day for the mediation meeting, the mediator will meet all the parties in an initial joint session at which each will present a brief oral summary of their case, possibly through their legal advisers. A limit on the time allowed for each party is common.
−	* During the various joint and private sessions, the mediator will be using the conventional negotiating techniques such as:	+
		+	Each party will then retire to their separate rooms and the mediator will talk to each party in turn, either by visiting them in their separate rooms or by calling them into the main room. Such private meetings are known as 'caucuses' in the jargon of ADR practitioners. Everything that takes place in the caucuses is private and confidential and their purpose is to enable the mediator to establish his understanding of the possibilities for reaching agreement and the approach most likely to encourage settlement.
		+
		+	The mediator will then shuttle between the various parties as required in an effort to find a settlement to the dispute. Nothing disclosed to the mediator in confidence in the caucuses will be disclosed to any other party without the express permission of the party disclosing the information. Private meetings between the mediator and only some of the parties may take place.
		+
		+	Working with the parties, the mediator will examine the issues arising in the dispute. The mediator does not take sides but they may challenge a position being adopted by one or other party. The mediator may suggest looking at the dispute from a different angle. They may test out possible ways of resolving the dispute. In short, they will examine the dispute and work with the parties to find an acceptable solution.
		+
		+	During the various joint and private sessions, the mediator will be using the conventional negotiating techniques such as:

	# separating the people from the problem – being easy on the people and hard on the problem;		# separating the people from the problem – being easy on the people and hard on the problem;
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	# encouraging a constructive problem-solving approach rather than dwelling on past quarrels and arguments.		# encouraging a constructive problem-solving approach rather than dwelling on past quarrels and arguments.

−	* The mediator may decide at any time to bring the parties together in joint session to report progress and seek mutually agreeable ways forward.	+	The mediator may decide at any time to bring the parties together in joint session to report progress and seek mutually agreeable ways forward.
−	* When and if the mediator reaches the position at which a settlement has been achieved, they will bring the parties together in joint session for a final time and will work with the parties to reduce the settlement to writing by means of a binding legal agreement and/or a consent order.	+
−	* If no settlement can be reached at the meeting, but some progress has been made, it is still open to the parties to adjourn to another time and place. The evidence is that even when no settlement is reached at the meeting itself, the parties will often reach an agreement shortly afterwards as a consequence of the discussions and progress made at the meeting.	+	When and if the mediator reaches the position at which a settlement has been achieved, they will bring the parties together in joint session for a final time and will work with the parties to reduce the settlement to writing by means of a binding legal agreement and/or a consent order.
		+
		+	If no settlement can be reached at the meeting, but some progress has been made, it is still open to the parties to adjourn to another time and place. The evidence is that even when no settlement is reached at the meeting itself, the parties will often reach an agreement shortly afterwards as a consequence of the discussions and progress made at the meeting.

	The process is voluntary, confidential, non-binding and without prejudice to the parties' legal positions. The fact that legal action is underway does not prevent mediation although the cost benefits of achieving settlement through mediation are obviously greater the earlier mediation is employed to resolve the dispute.		The process is voluntary, confidential, non-binding and without prejudice to the parties' legal positions. The fact that legal action is underway does not prevent mediation although the cost benefits of achieving settlement through mediation are obviously greater the earlier mediation is employed to resolve the dispute.
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	= Case study 2: Post-pleadings mediation =		= Case study 2: Post-pleadings mediation =

−	The dispute concerned an industrial building in the UK which had developed a defect about six months after practical completion. The main contractor for the work was a major UK contractor who had subcontracted – to a small, local specialist contractor – the work which was apparently the cause of the defect. Several attempts to correct the defect were made without success and eventually the architect issued an instruction requiring the whole of the subcontractor's work to be taken out and re-executed strictly in accordance with the specification. Both the main contractor and the subcontractor were by this time convinced, that the problem lay with the design, and refused to carry out the instruction.	+	The dispute concerned an industrial building in the UK which had developed a defect about six months after practical completion. The main contractor for the work was a major UK contractor who had subcontracted – to a small, local specialist contractor – the work which was apparently the cause of the defect.
		+
		+	Several attempts to correct the defect were made without success and eventually the architect issued an instruction requiring the whole of the subcontractor's work to be taken out and re-executed strictly in accordance with the specification. Both the main contractor and the subcontractor were by this time convinced, that the problem lay with the design, and refused to carry out the instruction.

	The building owner then employed a consultant architect to advise him about the problem and in due course employed another contractor to strip out and re-execute the defective work to what was, in effect, a different design.		The building owner then employed a consultant architect to advise him about the problem and in due course employed another contractor to strip out and re-execute the defective work to what was, in effect, a different design.
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	* Expert determination.		* Expert determination.
	* Housing Grants, Construction and Regeneration Act.		* Housing Grants, Construction and Regeneration Act.
		+	* How does arbitration work?
	* Pay now argue later.		* Pay now argue later.
	* Pendulum arbitration.		* Pendulum arbitration.

Designing Buildings at 08:58, 12 October 2017

2017-10-12T08:58:42Z

← Older revision		Revision as of 08:58, 12 October 2017
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	* Defects.		* Defects.
	* Disputes.		* Disputes.
		+	* Dispute resolution.
	* Dispute resolution boards.		* Dispute resolution boards.
	* Expert determination.		* Expert determination.