The use of mediation to settle construction disputes is on the increase.
Mediation and Conciliation have been placed together as they are similar processes but have different outcomes if agreement can not be reached. However, the concept of mediation and conciliation also varies in different jurisdictions and even between industries. For example, contractual conciliation in the new Irish government contracts is different from that described below. The descriptions given below are those that are generally accepted in the UK construction industry.
Both processes are consensual although the UK courts now readily impose cost sanctions in certain circumstances on those who refuse to mediate prior to litigation proceedings, (even if you are subsequently successful with your case).
Mediation is a process where an impartial third party attempts to facilitate agreement between the parties. If agreement is reached it is recorded in writing and if necessary that agreement can be enforced in the UK courts.Whatever the size of the dispute a successful mediation will be significantly less costly and quicker than going to court.
Even if the process fails, the materials prepared for the mediation will be of use later and therefore any abortive costs will be relatively low. Most participants agree that the process narrows the issues in dispute and therefore saves time and money in whatever process follows.
Both parties are free to walk away from the mediation at any time and proceed with other resolution methods but evidence suggests that mediation often works.
Two approaches to mediation are commonly used although other methods exist. In facilitative mediation the mediator expresses no opinion at all as to strengths and weaknesses of each parties case. The alternative is evaluative mediation. In this the mediator does give an opinion on the likely outcome in order to attempt to gain agreement. Parties are free to chose which style they wish to use. There has been a long running debate over which method is the better approach and in practice a mediator is likely to use a combination of the two styles.