Transcendental mediation: A mediator's role

King’s College London’s Centre for Construction Law has been lifting some stones and taking a peek at mediation. Oh, the research is all beautifully done. But what gets me about the smooth narrative and careful analysis is that in every dispute in the construction business two people, at least, want to kill each other. The reports and reporters are, of course, as calm as the mother superior in my local convent. But if Mother Teresa were a contractor from East Cheam in a fight to the death about a liquidated damages claim, just watch out for her fingernails! Use mediation? Yes of course – if it’s a means of winning.

Nicholas Gould (below) gives you the low-down as to King’s findings. What I want to do is try to put the idea of mediation into the context and atmosphere of a building dispute. Now then, I frequently say on this page that construction industry disputes are normal. It is an arrogant, even superior remark of mine. It overlooks how upset at least one party has already become. Unless they are an out-and-out crook, that party will honestly believe they are owed money, even if they are wrong. The manoeuvring, quarrelling, whinging is all about getting paid. Then reluctantly they reach for expensive reinforcements: consultants and lawyers. They talk tactics and fees. But the fed-up party not only wants “their” money but wants to make the other bloke hurt, too. They want revenge, and they don’t care which tool is used.

The mediation tool sits in the toolbox beside the litigation tool, the arbitration tool, the adjudication tool, the negotiation tool and the poke-your-eyes-out-with-a-bradawl tool. Commercial construction in the UK introduced mediation in 1990. I was there when the Centre for Effective Dispute Resolution came over from the US. The film we all watched was about a row over the air-con for an office, which was blowing into unspeakable crevices. The mediator mediated and all was well. No thanks, said the British industry. We opted for short, sharp 28-day adjudication. And that works. But if, after the adjudication, the loser wants a return match, it has to go to litigation or arbitration. That’s when mediation plays a role. Mind you, by now, unspeakable deeds have been done; war crimes have been committed by both sides. Getting the folk to come and be soft-soaped by a mediator takes some doing.

Credit: Simone Lia

Me? I am a mediation convert. Yes, I dumped the idea, but I’ve come back to it. Or rather, I’ve come back because I’ve dumped the mediation tool that was said to be “the only one”. I was firmly and wrongly told that mediation was not a place to obtain your legal rights. It was not a forum to talk about evidence or contract clauses or implied terms. The mediator was to steer clear of expressing a view about the strength of one party’s case. And I was hopeless at playing that game. I was told that I was, as mediator, only a facilitator … a person who smoothed the way to a compromise so that everyone went home unhappy. Time and again I was asked by one party, if not both, what I thought of the case: would they win or lose? Like Fred Astaire or like one of these politicians, I had to dance around the answer.

Then, one day, I said in answer to “Will we win in court?” “I will tell you how I would decide this issue if I were the tribunal”.

That cracked it! Nowadays I don’t hesitate to answer that question. As mediator I tackle, with each party, what their case is worth. And lo! I notice that King’s college research has not said whether that type of mediation or the tree-hugger variety is better or worse; but it has found out that 76% of mediations were handled by a solicitor or barrister; 11% were carried out by a “construction professional”. And I bet that the professional is damned good at law. In short, my own findings from quiet talks with mediators is that we, in construction, talk to the parties about their contractual rights. Hurrah. It works. As for the angry bloke who believed in his absolute right to be paid by the scoundrels on the other side, the mediator’s quiet word in his ear (“Your case, Sonny Jim, is hopeless”) may even see him say “sorry” to the mother superior next time we have a mediation in East Cheam, or Kolkata.