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Introduction
Mediation has been a common alternative to litigation since its growth in popularity in the mid-1980s. The non-adversarial approach of this type of dispute resolution has been popular within the construction industry in particular as a way of resolving disputes whilst attempting to preserve the often long-term relationships, which are typical of the industry.
This author looks to analyse mediation as a form of alternative dispute resolution through evaluation of its strengths and weaknesses.
The author, through examination of case law, will assess the emphasis the Courts now put on mediation and other forms of ADR as an alternative to the Court process, as well as the penalties imposed by and the consequences faced by parties who fail to co-operate with the mediation process at appropriate times.
Mediation
What is it?
To mediate: “to talk to two separate people or groups involved in a disagreement to try to help them to agree or find a solution to their problems”
One Courts described mediation as “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement”
Mediation is the most recognised and widely used form of Alternative Dispute Resolution (ADR). ADR is any form of dispute resolution that falls outside of the formal legal process. The main function of mediation is to assist two disagreeing parties to find a solution as quickly, and as cheaply, as possible, rather than accepting a decision imposed on them by a third party (a Court of law for example). Mediation can apply in a number of disputes, be it commercial, legal, diplo ...