Construction Mediation Guide and Protocol

As part of Constructing Excellence South West’s (CESW) ongoing series of essential topic industry guides, mediation was identified as a rapidly increasing, effective but misunderstood tool in the resolution of construction disputes. This guide, written by four collaborating, leading legal firms in the south west, sought to reverse that misunderstanding and promote mediation in construction, with Mediation for Construction (M4C) and CESW as the co-ordinators and publishers respectively.

Mediation is one of the Alternative Dispute Resolution processes whereby an independent person assists the parties to negotiate a settlement of a dispute. The Pre-Action Conduct and Protocol, which is published under the Civil Procedure Rules, requires the parties to a dispute to consider the use of an Alternative Dispute Resolution process and the Courts have held that a party to a dispute who unreasonably refuses to mediate, could be liable to cost sanctions. Moreover, contract publishers such as the JCT include provisions within its contracts which encourage the use of mediation. Recent statistics produced by the Centre for Effective Dispute Resolution show that 67% of mediations settle on the day of the mediation and a further 19% settle shortly afterwards. Put another way, 86 out of 100 mediations will result in a settlement because of the mediation process. In this context, Constructing Excellence South West, in collaboration with Mediation for Construction (M4C), has identified the need to highlight how mediation can and should be used to resolve disputes and Constructing Excellence South West supports and encourages the use of mediation as a process of resolving disputes

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