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.