Mediation & Conciliation

Mediation / Conciliation continued

Whichever process is used, any agreement reached does not have to be in accordance with the parties legal rights and obligations. In fact any agreement obtained is often described as one with which both parties can live with. The potential remedies available are therefore far wider than those available in adjudication, arbitration or litigation.

However, if legal representation is present it may prove difficult to gain a solution that departs significantly from the parties legal rights and remedies. Mediation in the US has been criticised where lawyers have been allowed to take over and initiate adversarial practices and not look for constructive settlements.

The primary difference between Mediation and Conciliation is when agreement cannot be reached. In Conciliation the Conciliator decides the dispute and the parties agree to be bound, at least temporarily, by the decision. In mediation, if no agreement can be reached the process fails, the Mediator makes no decision on the outcome of the dispute. The result in a conciliation therefore will be in accordance with the parties legal rights and remedies unless the conciliator has been expressly granted permission to depart from these. Due to the more binding nature of conciliation the process tends to be more formal than mediation.

Today, if choosing the final dispute resolution process to be litigation rather than arbitration, then a party must be prepared in most circumstances to mediate. If a party for some reason wishes to avoid mediation then litigation may not be the dispute resolution process to choose.

Mediation is certainly being used much more widely in construction disputes today. It is flexible and can be tailored to virtually any dispute. It is undoubtedly a process that in the future is going to feature to a much greater extent in the resolution of construction disputes and early research suggests it is a process that works.

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