Alternative Dispute Resolution: Why mediate?

At the risk of stating the obvious, all disputes end up being resolved by agreement or via the decision of a third party, more often than not by an Adjudicator in our construction industry.

Although I take on a lot of appointments as Adjudicator I still can’t understand why, as an industry, we don’t mediate more disputes than we do.

Does testosterone get in the way? Is it really the principal of the matter? Is it poor advice or not knowing enough about the options available? I wish I knew.

There really is never a “sure thing” and clients, big and small, ought to be encouraged to mediate their disputes rather than risk the uncertain outcome of formal legal proceedings.

So, why choose mediation?

I have said it a thousand times but here I go again.

1. Mediation is the only form of Alternative Dispute Resolution (ADR) where the clients stay in control, make the decisions and have the power to settle on terms that they can live with.
2. Unlike adjudication, mediation doesn’t solely have to be about money or performance.

So, what will it be? An uncertain gamble via adjudication or a principled, negotiated deal that will allow you to keep the shirt on your back and allow you to move forward with certainty via a mediated settlement agreement.

I know which option I would prefer.

So, if you are going to consider appointing me (or anyone else) to arbitrate, determine or adjudicate a dispute you are involved in, please all consider appointing a mediator.

Whilst there’s no guarantee of a successful outcome in the mediation, the statistics would suggest that there is very high chance that tomorrow (without a costly and distracting dispute dragging you down) will begin to look a whole lot brighter.