The art of mediation
RICS, the world’s leading professional body for qualifications and standards in land, property, infrastructure and construction, has fine-tuned an approach to mediation which aims to avoid the need for expensive litigation or arbitration.
Why is mediation growing in Europe and around the world?
Mediation is a voluntary, non-binding and private process where a neutral person helps parties to reach a negotiated settlement. It is usually a much quicker and cheaper alternative to going through the courts, and the parties take control over the outcome. For this reason, mediation is strongly supported by judiciaries, and it is now accepted that litigation lawyers must consider whether mediation is an appropriate method of solving their clients’ dispute. Courts have been known to impose cost sanctions against parties who decline mediation and proceed to litigation in cases where the court considered mediation to be appropriate.
How does the RICS approach differ to traditional approaches to mediation?
Traditional mediation takes a facilitative approach, where the mediator tries to help the parties find their own solution to a dispute. Facilitative mediators are skilled at negotiation and softer skills, such as verbal and non-verbal communication, but they are not necessarily experts in the area of the dispute. This approach is suitable for disputes related to family, workplace and community matters, for example, but for the land, property and built environment sector, a more robust approach is required.
The RICS ACRE (Analytical, Commercial, Restorative, Expert) Mediation Service combines facilitative and evaluative approaches. There are two elements central to this approach: first is that our mediators are trained and accredited to internationally recognised standards, and second is that they are highly experienced and skilled professionals in the built environment sector. The objective of RICS mediation is for the parties to reach a settlement, or at the very least emerge with a clear understanding of the issues facing them in court or at arbitration, allowing for a narrowing of the issues in dispute.
How does mediation work alongside collaborative contracting and conflict avoidance?
One of the main aims of collaborative contracting and conflict avoidance is to maintain working relationships, which can suffer if issues are not dealt with at an early stage and grow into full-blown disputes. Conflict avoidance processes encourage early intervention, and promote open and honest communication to prevent matters escalating to formal dispute resolution procedures such as arbitration or litigation. In order to resolve issues, parties engage in amicable settlement procedures such as negotiation and mediation in an effort to avoid conflict and keep working relationships intact. Using conflict avoidance processes ensures that all parties are focussed on dealing with problem issues and communicating in structured conversations without placing blame. This creates a collaborative environment where all parties work together to seek solutions to problems.
How should mediation and arbitration be presented to potential users?
First, both mediation and arbitration are highly effective means of keeping costs down, as the court process can be lengthy and expensive. They are also a means of maintaining the confidentiality of business relationships and of reducing the risk to reputation that judicial processes taking place in the public eye can involve. Finally, where arbitrations and mediations are conducted skilfully, they are a means of minimising the stress and damage to business relationships that traditional adversarial court proceedings can cause.
How can the public sector’s reluctance to embrace mediation be overcome?
The experience of organisations who have used mediation and conflict avoidance processes is invaluable when persuading the public sector to embrace mediation. In the UK, Transport for London (TfL) have developed Conflict Avoidance Panels alongside RICS DRS and their major contractors, and have integrated these into contracts on the upgrading works on the London Underground. Conflict Avoidance Panels promote the use of negotiation and mediation to resolve issues, and they have been written into £7billion worth of contracts and have been used successfully on a number of matters that could have otherwise escalated to arbitration or litigation.
How would you define the ‘blended approach to arbitration’?
The blended approach is often used within conflict avoidance procedures, where negotiation and mediation is used as a first resort. If an issue cannot be resolved amicably, then an independent panel of expert(s) will undertake an early review of issues where the parties have acknowledged that there is disagreement. These processes can be adapted to meet the needs of the parties, but the review will usually provide non-binding and fully reasoned recommendations for resolving the issues. These recommendations are non-binding, but if a party decides not to accept them, they must provide a written, fully reasoned explanation for this decision.
What are the benefits of using collaborative contracts in the built environment?
Using collaborative contracts means that from the beginning of a project, all parties agree to demonstrate a genuine willingness to prevent the need for expensive, drawn out litigation or arbitration wherever possible. As all parties have taken ownership in agreeing to use collaborative contracts and conflict avoidance procedures, they trust the process and know the professional appointed to deal with the issues will be an expert who is fully independent and free of conflicts. All parties will be focussed on dealing with problems and working together to seek solutions to these problems.
Dr John Fletcher is the RICS ADR Products Group Director and is head of the RICS global Dispute Resolution Service (DRS). DRS is responsible for RICS’s arbitration, adjudication, expert assessment and evaluation, dispute board, independent witness and media – tion service provision and training in the construction, built environment and related sectors internationally