Mediation of Construction Disputes

David Richbell MCIArb managed his own quantity surveying practice for nearly 20 years and worked on engineering and construction projects. He is now one of the most experienced commercial mediators in Europe, having practiced since 1992. A former director of CEDR, he now leads the Chartered Institute of Arbitrators' mediator training course.

Acknowledgements. Forward. Introduction. Chapter 1 The Construction industry is great at creating disputes. Contractual. The no contract scenario. The 'is there/is there not' a contract scenario. Incompatible contracts. All-risk contracts. Unrealistic performance criteria. Financial. A low-margin industry. Claim cultures. The squeeze game. Culture. Adversarial. Fragmented. High failure rate. Complexity. Incurable optimism. External factors. Weather-sensitive. Consultants. Government legislation. Why people get into disputes. Communication. Personality. Interpretation. Chapter 1 in a nutshell. Chapter 2 The Dispute Resolution options. Consensual methods of resolving disputes. Negotiation. Conciliation. Mediation. Arb/Med and Adj/Med. Court Settlement Procedure. Resolving disputes through recommendation. Neutral fact-finding. Dispute Review Boards. Early Neutral Evaluation. Mediator recommendation. Conciliation. Imposed solutions to disputes. Med/Arb and Med/Adj. Adjudication. Ombudsman. Expert Determination. Tribunals. Arbitration. Litigation. Why traditional methods fail the parties. Inherent injustice. Cost and Time. Adjudication is not the 'Saviour'. The better options for Dispute Resolution. Consensual Processes. Partnering. Dispute Avoidance. Chapter 2 in a nutshell. Chapter 3 The case for the Mediation of Construction Disputes. Better deals. Speed and economy. Flexibility in process and outcome. Finality of outcome. Mediator 'added value'. Getting off the treadmill. Ongoing relationships. Day in Court. Commercial v Legal. It adds another layer of cost. It is too 'touchy-feely'. Mediation is non-binding and has no teeth. Mediation is all about compromise. Mediation is all talk, no commitment. Chapter 3 in a nutshell. Chapter 4 Preparing for Mediation. Typical framework. Stages of mediation. Preparation by the Mediator. Preparation by the Parties. When to mediate. How long should the mediation take?. Who to choose as Mediator. Mediator fees. Co-Mediation. Assistant Mediators. Conflicts of interest. Documents. Where to mediate. Who attends?. Authority. Who presents?. Dry run?. Pre-mediation meeting. Pre-mediation contact. The Mediation Agreement. Risk analysis. Anticipate the settlement. Chapter 4 in a nutshell. Chapter 5 Presenting at the Mediation. Arrival. Pre-Meeting. Initial joint meeting. Using the joint meeting. Exploring stage. Giving and receiving information. Idle time. Other's shoes. Non-financials. Chapter 5 in a nutshell. Chapter 6 Negotiating at the Mediation. Negotiation zones. Reviewing. Bottom lines. Negotiation strategy. Incompatible styles. First offers. Offer logic. Getting into deadlock. Pain-pain. Keeping options open. Non-financials. And finally. Chapter 6 in a nutshell. Chapter 7 Concluding the Mediation. Finality. Deals with dignity. Part-deals. No deal. Writing the settlement agreement. What can go wrong?. Cooling off period. Mediator recommendation. Mediator liability. Chapter 7 in a nutshell. Chapter 8 Roles in Mediation (who does what?). Client. Legal advisor. Counsel. Experts. Consultants. Support staff. Mediator. Assistant. Co-Mediator. Chapter 8 in a nutshell. Chapter 9 Avoiding disputes in the Construction Industry. The positive side of conflict. Creating a culture that is positive. Twelve rules and challenges. 1. Establish clear, simple and constant lines of communication. 2. Establish clear roles, resp