New measures have been proposed to spread awareness of the alternatives to litigation. More innovative approaches might help the proposals to succeed.
The final report of the Civil Justice Council’s ADR Working Group (the WG), ADR and Civil Justice, published in November 2018, recommends measures to increase awareness of ADR. It proposes setting up a forum to enable liaison between key ADR stakeholders, creating an ADR-focused website and reviewing the Civil Procedure Rules (CPR) to reflect a presumption that parties should engage in ADR at an appropriate stage. It also wants to review the Halsey guidelines to strengthen sanctions against those who unreasonably refuse to mediate.
Recognising that the time for triggering an ADR proposal is crucial and will be different in every claim, the WG rejects mandatory ADR: compelling parties to mediate before they understand the issues and evidence will not promote full settlement.
The WG’s recommendations are timely: court reforms, new technology and clients’ drive to reduce costs demand that parties choose appropriate and proportionate means to settle disputes.
The Technology and Construction Court (TCC) judiciary and construction lawyers have been at the forefront of the ADR movement for many years. ADR processes are consequently widely available in construction. Adjudication is a statutory right. Other processes are written into contracts on larger projects. The Construction and Engineering Pre-Action Protocol requires the parties to consider ADR and meet before issuing a claim and most parties now engage in some form of negotiation when a dispute arises and may progress to more structured, supported negotiations like mediation.
So, if we are all aware of the options, and already widely using simpler forms of ADR (negotiation), what’s stopping us from using ADR processes such as mediation in construction disputes? Has the very success of adjudication eclipsed this other, more flexible ADR option? Do some parties (and their lawyers) perhaps still think that suggesting ADR early on is a sign of weakness – despite the threat of sanctions?
Much unwillingness to mediate is based on the timing: most are unwilling to mediate until after disclosure. But in reality, what makes ADR less appealing is the cost: in lower-value disputes, the cost can soon become disproportionate to the value in dispute. Mediation is regarded as an expensive day of to-ing and fro-ing, which needs a small army of professional support. Failure to settle in full may be seen as a costly failure, not a step in the resolution process.
But mediation is not a prescribed, one-day process: it is a flexible tool. Mediation providers now offer a variety of products to suit most pockets including, for example, fixed price services for two or three hour mediations. These short mediations, involving an opening and caucus sessions conducted by telephone or Skype, could reduce the logistical issues and costs.
In low value claims, such mediations can offer the chance to air grievances, test arguments, promote interparty understanding, heal damaged relationships and revive the original spirit of collaboration. Underlying issues can be unlocked – and, once the wider context is understood, practical solutions can be found without adjudication or litigation.
In complex, high-value disputes, a series of shorter mediations using the same mediator could help the parties focus on discrete elements of a claim. This approach, akin to a non-binding, collaborative version of TCC judges deciding preliminary issues, could help parties narrow the issues in dispute and bring them closer to a full settlement.
Maybe a more innovative approach is all that is needed to fulfil the WG’s recommendations in the construction industry and make ADR a more attractive proposition for those who would most benefit from using it.
This commentary first appeared in Construction Law on 4 March 2019. You can subscribe to the magazine here.
