Here’s a new cure for those heated disputes: wait until adjudication comes to an end, don’t tell the parties who’s won what, then ask if they fancy a bit of mediation. Hey, it works
The Centre for Effective Dispute Resolution, you and I know it as CEDR, is one of the leading mediator appointing bodies. I remember going to its inaugural meeting back in 1990. And truth to tell, CEDR got mediation firmly embedded in the dispute-solving portfolio. Then, 10 years ago, it also became an adjudicator-nominating body. It is about to innovate again. “CEDR-Solve” has bolted adjudication and mediation together. It is standard 28-day adjudication in accordance with the Construction Act plus optional provisions for mediation. Call it
Adj-Med. And from my own experience, it works well. I have even done arbitration then bolted on mediation; call that Arb-Med.
Now, some of you will have heard of Med-Arb. Don’t get that confused with what CEDR –Solve has come up with here. This is not where a failed mediation allows the mediator to impose a binding decision on the parties. This time it’s the other way around. Let me explain. You are entitled under the Construction Act to bring your commercial dispute to an adjudicator. The adjudicator does the business and, at high speed to a strict timetable, produces the award. It is binding; the court will enforce the decision. The binding decision lasts until the whole dispute is heard over again via litigation or arbitration or is settled by agreement. Now let me tell you how CEDR-Solve Adj-Med works.
You will learn during the adjudication a damn sight more about your own strengths and weaknesses of argument; That sure-fire position you thought you had may not be quite so bullish
CEDR appoints the adjudicator. Then, shortly before the adjudicator is ready to publish the binding award, a note invites both parties to request the adjudicator to place the forthcoming adjudicated award in a sealed envelope. The note goes on to invite the parties to now agree an extension of time for publication of the award so as to mediate their dispute – not knowing what is in the sealed envelope.
Why? Why not just “open the box” and see what is inside? Look, an ordinary construction dispute is like the cat with nine lives. Disputants dodge death by a whisker. The first life of the dispute is where contractor and customer get at odds. The quarrel itches and irritates but goes nowhere. We invented adjudication 10 years ago to stop the itch. So life two is getting a pro-tem binding decision from an adjudicator. The game might stop there but either party has the right to take the dispute to full blown litigation. This so-called right has to be met by a pocket, nay wallet, nay, bank full of spare cash. Itches, give way to aches; aches give way to pain. Believe me, at one stage or another each and every party wants to stop. We pretend we don’t, but we do. So the route to relief is to mediate. Commercial midwives, coax, cajole the warring parties to pack up. Settle.
The new idea fits beautifully with adjudication. Mediate at or near the end of the adjudication. I called it the cat’s second life. I tell you this: if you thought you knew what your opponent’s arguments, strengths and weaknesses were before the adjudication, you will learn during it a damn sight more about your own strengths and weaknesses of argument. That sure-fire position you thought you had may not be quite so bullish. By persuading yourself not to open the adjudicator’s sealed envelope, by persuading the adjudicator to now become the catalyst for finding a mediated conclusion, you may get the whole matter put behind you.
This so-called right to take your dispute to litigation has to be met by a pocket, nay wallet, nay, bank full of spare cash
Unlike “ordinary” mediation, this Adj-Med system always produces a result. The failed ordinary mediation means that the parties have wasted their time, money and effort. It has canvassed arguments via a mediator but the mediator hasn’t the power to impose a decision. In Adj-Med, the mediation has a huge piece of persuasion to settle by a negotiated signed voluntary deal. It’s this. If there is no voluntary settlement, the adjudicator’s award is only then revealed. This type of mediation immediately following the adjudication has a different complexion to ordinary mediation. The mediator is right inside all the materials and arguments – so too both parties. This time, the adjudicator knows what each party is in for according to his still secret award. The envelope will be opened today at 5 o’clock . . . unless you settle! Oh boy, it works. As to what is in the secret envelope, well now, since you’ve settled, it’s none of your business. Try it.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple