The secret of mediation's success
They say that mediation is no good, but I beg to differ. Earlier this year one of my colleagues spent a week in close session with three other parties in a multi-million pound dispute. The mediator was appointed by CEDR, undisputed leader in this sunrise profession.
My colleague likes to think that he can take some credit for the result. But, if so, it has much to do w ith what he sa id about a discipline in which he as an architect has some experience but no qualification:
quantity surveying. For the dispute was settled within just a few thousand pounds of what he had argued for.
Did the result have anything to do with the respective liabilities of the parties? Not a lot. Did it have anything to do with the charisma and leadership qualities of the mediator? No. Did it have anything to do with the terror with which each party faced the cost of litigation? In my view, everything.
So here then is a niche. Call it mediation, where the mediator develops inter-party relationships and urges compromise, or the more aggressive Henry Kissinger-style conciliation, where the conciliator pays less attention to facilitating direct negotiation but shuttles backwards and forwards between the parties exacting common sense and compromise as he goes.
As long as the costs of litigation remain astronomical, mediation and conciliation will have their place. But let's not get too excited. Most disputes amount to only a few thousand pounds, and at least one of the parties will be driven as much by wounded pride as by commercial good sense. In such circumstances, mediation or conciliation will, almost certainly, come too late. Moats will have been filled and portcullises lowered - nothing short of a bloodbath will sort them out! The secret, as with so many failings in human relations, is to halt the damage before it is done; to arrange for an early-day mediation that takes place without it even being noticed.
Who should arrange this virtual mediation? The architect, of course - indeed, we do it all the time! We talk to plumbers, bricklayers, steeplejacks, planning officers, valuers; in short, we talk to everyone. And one of the things that we do incred ib ly we l l is to app ly our skill, knowledge and experience to enable building operations to run smoothly and efficiently, free of the difficulties that arise through failings in communication.
Of course, you won't find this responsibility in the forms of appointment, for how would you define it?
But it is surely time to recognise the skills we possess, and to champion them.
Sadly, the sudden arrival of statutory adjudication will prevent the widespread adoption of formal mediation and conciliation services. Whereas the monumental and ever-mounting costs of litigation would have provided sufficient incentive for these processes to have taken hold (and several insurance companies have been insisting on attempts at mediation as a precursor to litigation), adjudication, like mediation, is relatively inexpensive. So it is inevitable, owing to its statutory presence, that adjudication will succeed at the expense of mediation.
This a pity, for mediation is born of agreement, whereas an adjudicator's decision is applied with a heavy stick! In my view, matters of difference should whenever possible be settled by agreement rather than by decision. On this point Egan surely got it right!