How mediation can help unlock project disputes

Disputes on infrastructure projects can have a major impact on their successful delivery. Robert Gerrard, Secretary, NEC Users Group, discusses the benefits of mediation, and ICE’s dispute services for adjudication under the NEC contract.

[edit] Introduction

In training to be a mediator, it quickly becomes clear that disputes commonly focus on positions, whereas a successful mediator focuses on needs and interests of the parties.

It's the sharing of the needs and interests that will generally unlock a dispute, allowing the mediator to assist the parties get to a settlement they can live with and get on with their lives.

Mediation seems to have an extremely high success rate. Positions, needs and interests are commonly best thought about using the analogy of an iceberg.

[edit] What’s above the iceberg?

When parties are in dispute, let’s say a civil or commercial dispute about that dirty word ‘money’, each throws their positions back at the other.

‘My case is better than yours’, ‘my evidence is better than yours’, ‘my lawyer is better than yours’, and so on.

All very well-rehearsed and practised, with this method of dispute resolution having its root in ancient times. Both parties will have developed some fixed views and it takes a lot of effort to change this.

This all gets hauled off to an adjudicator, arbitrator or judge perhaps, and a decision is made that's out of the parties’ hands. They've lost control of their own dispute.

[edit] But what’s beneath the iceberg?

A whole host of things can be found beneath the iceberg. Beliefs, values, emotions and other such matters that are best summarised as ‘needs’ and ‘interests’.

When you start to understand these needs and interests, and are allowed to share with the other party, amazing outcomes can happen that seemed so unlikely at the start of the day.

This is the human side of disputes, something that just doesn’t matter or emerge in traditional dispute resolution. The parties get to stay in complete control of the dispute, no one forces anything upon them and they're free to walk out at any time if they wish. It’s a voluntary process.

[edit] So, what can you get from this blog?

Apart from taking a closer look at mediation to resolve disputes in your work activities (and take a look at the ICE mediation offering under our Dispute Services webpage), think about using the iceberg analogy for so many other aspects of life.

Take the Latham Report (UK) or the Tang Report (HK). Stick them both above the water on the iceberg. Many years on from the aspirations of both, how much closer are we to reaching the goals in both reports in UK and HK?

Miles off, I would say. Why is that? Well, look at what’s going on below the surface and you will see problems with ethics, lack of trust, dire profits in the industry, poor cash flow, still far too many accidents and so on.

To not address these head-on means we can never achieve the ideals of where we should be as an industry.

This article was first published on 29 November, 2018 at: https://www.ice.org.uk/news-and-insight/the-civil-engineer/november-2018/how-mediation-can-help-unlock-project-disputes

--The Institution of Civil Engineers

[edit] Related articles on Designing Buildings Wiki

• Adjudication.
• Alternative dispute resolution.
• Arbitration.
• Causes of construction disputes.
• Conciliation.
• Disputes.
• Dispute resolution.
• Dispute resolution boards.
• Expert determination.
• How does arbitration work?
• Mediation.
• Pay now argue later.
• Pendulum arbitration.
• The role of the mediator.