Mediation

Question 1

Disadvantages of mediation in construction disputes

Answer 1

Exposure of strategy and information
No scope for disclosure
Strong legal case may not be adequately recognised
No obligation to take part - party can refuse
Perception of weakness (construction industry)
Not legally binding

Question 2

Advantages of mediation in construction disputes

Answer 2

Can save time and costs
Confidential
preserves or even builds relationships
Creative solutions
Potential for a mutually agreeable outcome
High settlement rate
High rate of compliance
Parties get heard

Question 3

When is mediation not suitable?

Answer 3

Point of law needs to be resolved
Injunctive relief is required
Allegations of fraud or disreputable conduct
Court order is required
Mediation has no realistic prospect of success
Human rights or criminal sanctions involved
Policy and public interest issues to be addressed.

Question 4

What is injunctive relief?

Answer 4

A court order to command or forbid a party from taking action that may cause irreparable harm.

Question 5

Recommendations from 2019 report from Scottish Mediation ‘Bringing Mediation into the Mainstream in Civil Justice in Scotland’

Answer 5

Recommended:
- Legislation to make it compulsory for parties to consider mediation;
- Referring parties to an Early Dispute Resolution Office
- EDRO Report lodged in process.
- Mediation free for Simple Procedure actions (under £5k)
- Court rules changes to place duty on judges to encourage mediation.