This process involves the appointment of an independent third party who assist the parties with negotiating their own settlement. The process is private and confidential and any settlement agreed as a result of the mediation will be binding on the parties. Mediation is widely used by the construction industry to resolve construction disputes. In broad terms, mediation of construction disputes does not differ from mediation of other disputes, except in respect of the subject matter of the disputes. However, its wide use can be attributed to the fact that construction disputes have been found to be particularly suited to mediation and there is strong judicial encouragement from the Technology and Construction Court (TCC), the specialist court dedicated to resolving construction disputes.
Other forms of Alternative Dispute Resolution (ADR)
Other methods of resolving disputes include without prejudice negotiations which can take place either at a meeting or by correspondence. Click this link for further information on ADR.
Pre-action protocol for Construction & Engineering Disputes
The Protocol applies to all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors) that are heading towards litigation. The Protocol requires the parties to attend a without prejudice pre-action meeting. At this meeting, the parties are required to consider whether some form of ADR procedure (including mediation) would be more suitable than litigation and, if so, to agree which form of ADR to adopt. Interestingly, the survey revealed that parties that settled their dispute after proceedings were started were unlikely to have been involved in a mediation during the pre-action protocol phase.
In addition to holding a without prejudice pre-action meeting, the court may require the parties to provide evidence that ADR has been considered. Importantly, if a party fails to consider ADR or commences proceedings prematurely, the court must take this into account when considering costs.
Working with you
We know that in the building and construction industry, problems can sometimes arise - If a building or construction dispute occurs, BHP Law’s Building and Construction Dispute Team will work with you to ensure that it is resolved quickly and efficiently. We have a wealth of experience and will work hard to advance and protect your interests. We will present your case effectively and ensure you have the best advice and representation suited to your needs.
If you would like to talk to us about your options please contact a member of the team, complete our call back form or contact us directly at your local office.