ADR

I hadn't heard of ADR until June 1990. An enterprise called CEDR - The Centre for Dispute Resolution - held, what I recall, was an introductory discussion to ALTERNATIVE DISPUTE RESOLUTION. It was at ICI Headquarters, Millbank, London. The place was packed out with Lawyers .... mostly from the Construction Industry. CEDR showed us a film shot in the U.S.A. Guess what, it was all about a construction dispute in a commercial office complex. The heating and ventilating was heating and ventilating at the wrong moments . So it was a dispute.

The film was acted out using words and phrases like "neutral" and "breaking into a caucus". We all recognised what was going on. It was of course negotiation; nothing much different to what we had done for years except that the negotiations had a sort of "conductor". This was the mediator or neutral. The mediator was brought in by an organisation like CEDR. He had been trained. He had mediation techniques and jargon. He talked not about legal entitlements, but about "interests". He was looking to capture "a solution that the parties could live with", rather than identify rights and duties. It was, in short, a fully developed mediation process with techniques and procedures and rules. It worked we were told in the U.S.A. Would it work here?

Mediation is quite unlike Arbitration or Litigation or Adjudication. Those latter three are almost always operated to decide legal rights, and impose a binding decision on the parties. But mediation is non binding. Anyone can walk away at any time and go to a tribunal to get your rights. In construction disputes the difficulty has not been people walking away from mediation. Rather it has been a devils own job to get people to walk towards Mediation. The reason is that construction disputes often see one party quite happy to spin out the dispute process. It has become something of a naughty game ..... frustrate the opposition into throwing their hand in.

In an odd way the structured Mediation has rather got in the way of the British way of negotiating a settlement. I recall in the 1980's representing a trade association. When a complainant pointed at a member's poor performance I would move towards that complainant for face to face dialogue, establish his concerns, look for a remedy. Then I would go to the trade association member and discuss those complaints and ideas. Often the parties would solve the problem by getting to meet. It needed shuttle diplomacy. My appointment and fee was paid by the member. I was not appointed by both. Nor did we give the process any special name. But that process worked most often. It avoided litigation, avoided entrenchment. Preserved and repaired relationships.

Nowadays people expect a formal appointment of the "Neutral", then special presentations, then private meetings with the Neutral, then joint meetings. So people have to bring to the front of their mind the notion of ADR, and then agree to mediate. The trouble is that getting disputing parties to outwardly agree anything is difficult. Obstinacy is ordinary. Bear in mind the alternative idea of pushing mediation from one side only. Think about what we did in the 1980s. There is merit. Nor is there a monopoly on ideas for getting settlements.

Nevertheless formal ADR has begun to take hold to some extent in construction. And since there is now a new weapon called Adjudication which gives a binding decision in 28 days it is possible that the disputing parties will more readily opt to mediate the problem instead. What is the procedure? Usually the appointment is joint. The choice of person is by the ADR enterprise but let me say this, I would be perfectly happy for the other side to chose the mediator. The person need not be independent. He is not a Judge or Arbitrator or Adjudicator he is merely a facilitator. Pre meeting it is usual for each party to explain the problem in writing. It is ordinary to meet with lawyers present. Counsel's job is to orally explain his clients point of view. The mediator encourages the parties not to hide behind the lawyers. They too are invited to have their say. Now the two parties divide into separate rooms. The mediator begins his shuttle-diplomacy. He is seeking to identify a range of imaginative solutions. Business relationships may have suffered between the two organisation because of the dispute, can they be repaired? Can the repair look to the future as part of the remedy in the dispute? The remedies available are far wider than legal remedies available to a tribunal. Gradually he tries to establish movement "are we getting somewhere?" is the simple question in each private meeting.

The process may take a day or two or more. It really does work. Those of us who have taken part in these structured discussions with well trained mediators are always impressed. I have witnessed anti ADR people being converted "overnight".

Also recognise this. The Courts are becoming much more open about the usefulness of exploring every possible avenue for settlement before getting to trial. Turn to my litigation page and see what Mr. Justice Girvan said in a recent trial. Do not be put off asking the opponent to mediate the dispute ..... it is probably your duty to do so. It is no longer a sign of weakness, nor lack of resolve.

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