Construction Disputes & Mediation
Construction Disputes And Mediation – Info & Advice
Construction disputes can have a highly detrimental effect on a business. The business faces not only the cost of resolving the dispute, which can be substantial, but also the possibility of loss of income. This can come about if work ceases until a dispute is resolved, or if key personnel are diverted from their normal tasks to help bring about a resolution to the dispute. Engaging a trained mediator can help to get construction disputes resolved before the costs escalate. Mediation services have a high success rate, and this is an avenue that should most certainly be explored if face-to-face consultations cannot break the deadlock.
Benefits of using mediation
In the first instance, mediation provides a means of bringing disputing parties together quickly. The process can be economically beneficial to all parties, possibly saving on substantial legal fees that may be incurred if the dispute has to go before a civil court for resolution. It can take quite a long time, sometimes even years, for a dispute to be heard in court, depending on the court calendar and the nature of the evidence that needs to be gathered. The delay in getting a court hearing could cause significant financial losses to the disputing parties. Secondly, when a resolution is reached through mediation, the working relationship between the disputing parties will remain on better terms, since the parties have mutually agreed to the resolution. This is in contrast to the aftermath of a court hearing, where one or more parties to the dispute may feel aggrieved by the decision of the court.
What the mediator does for construction disputes
It is important to understand the role the mediator plays in helping the parties to come to an agreement. He or she is not there to determine the rights or wrongs of each party’s claims, and the mediator will not make any decision that the parties are expected to abide by. Neither will the mediator give any opinion on the rights of any of the party’s involved. The mediator acts as a facilitator to allow each party to present its point of view in a controlled, civilised and respectful way. The mediator will remain completely impartial and all discussions pertaining to the actual dispute take place directly between the disputing parties.
Is seeking mediation compulsory?
There is no legal requirement to use mediation to resolve disputes. However, a court can rule that any party that refused to try mediation behaved unreasonably, and can make a judgement against such parties based on that ruling. In other words, refusal to partake in mediation can be the sole reason for losing a court action. This places on onus on the parties in construction disputes to explore every avenue before resorting to lawsuits. Other important legal decisions only serve to strengthen the importance of mediation. In a landmark case involving a lawsuit against Railtrack, the court found in Railtrack’s favour. However, Railtrack had refused to go to mediation, and the court ruled that because of its insistence on proceeding to court, the plaintiff would not be made responsible for Railtrack’s costs.
Consider mediation as vital before litigation in construction disputes
There are situations when a court will rule that a party’s refusal to attend mediation is not unreasonable. When construction disputes arise, seeking legal advice from a barrister with experience in this area of the law is highly recommended. This will ensure that the correct procedures are followed from the start.