Using a very simplistic analysis: Both Arbitration and Litigation follow a similar linear path once the Parties decide they need outside assistance to resolve their dispute. Each prepare their evidence in isolation which is then usually presented and cross-examined by professional advocates after which the Arbitrator/Judge deliver their decision, which is usually enforceable by the jurisdiction in which the matters in dispute have been heard.
On the other hand, once Parties have decided to use the process, an effective Mediation has a beginning and from then on it is only at the conclusion that the particular path followed can be analysed. Unlike Litigation there is no single Mediation Process although broad categories of disputes such as Family relationships do tend to have loosely defined commonalities. I find that I often use a variety of Models within a single mediation as the circumstances of the moment require.
The common feature of Mediation is that it is a negotiation between the Parties which is facilitated by a neutral third-Party who does not make any determinations. Also there is no compulsion to reach Agreement. I believe that Lawyers can help the meeting of minds, BUT from the background.
Because there is no outsider making ‘final’ judgements, and no requirement to ‘agree’, the Parties often do reach agreement, in whole or part, through the lack of pressure to agree – the Paradox of Mediation. As in negotiation, there is no problem with Parties revising their positions and the discussions reverting to earlier stages as more information is gathered and understandings are realised.
Given the complexity of construction projects disputes are inevitable but there is also an imperative to not delay the Work. In construction, activity must continue along the Critical Path – the luxury of going to Court to battle cannot be tolerated by either the Owner/Developer nor by the Contractor. This is why the practice of Arbitration had naturally developed over the centuries in parallel with Litigation.
Of course there are disputes, both small and large, which do need to be dealt with in an adversarial manner but when analysed later these can be found to have a significant proportion of personal inter-relationship aspects at their foundation which would have benefited from an alternative approach. Litigation is not normally equipped to cope with these ‘Elephants-in-the-Room’.
When is becomes obvious that full and final agreement on all matters will not be reached, the Mediation can revert to discussing options for resolving the outstanding matters. This is not a failed Mediation, but rather positive confirmation that there are matters which need to be determined in a Judicial Forum.
When used as a Tool, mediation between the Parties and their Advisors can:
- More efficiently and in less time discuss, negotiate, and agree timetables.
- Tease out issues to ensure all understand what is being claimed or counter-claimed.
- Discuss and agree the range outside of which Discovery is not needed. This could be by dates, subject matter, personnel involvement, etc. This can be on the basis of if in doubt or not agreed then include it within the range.
- Identify and discuss peripheral minor issues that are being claimed or counterclaimed but are of little consequence for the other Party and so could be dropped or set aside for a separate mediated agreement. Of course this would have to be carefully controlled to ensure there are no breaches of Natural Justice or Court Rules.
- To deal with any inter-personal problems in the background of the dispute which may disrupt or prolong the arbitration or litigation. It must be remembered, but is easily forgotten, that all those involved do not necessarily have the same personalities.
- Et cetera.
As an addition to the usual attributes required to be an effective Mediator, the former Director of the United States Federal Mediation & Conciliation Service, William Simpkins, is said to have described the ideal qualities of a Mediator as including:
“The patience of Job,
the wit of the Irish,
the physical endurance of a marathon runner,
the guile of Machiavelli,
the wisdom of Solomon, and
the hide of a rhinoceros.”
Mediation may be a magical process but it is not a miracle cure. It is just a Tool but with a lot of potential. Disputes need time to mature. There is a time when it is too early to begin, but never too late to start. Once started Parties realise it could have begun much sooner – the Paradox of Mediation.