International Construction Law Review
MEDIATION IN INTERNATIONAL CONSTRUCTION DISPUTES
EDWARD LIGHTBURN
Solicitor, CEDR Founder CEDR Accredited Mediator
INTRODUCTION
In the late 1960s and early 1970s, a legal career in civil work was not advanced by specialising in litigation. It made no money and had no kudos. In the middle to late 1970s, however, the pendulum swung. Litigation began to make real money as commerce became more closely aligned with the hard-nosed pattern of the United States. It was possible to sue a commercial enterprise while, at the same time, doing business with it. Of course, as happens, things then got badly out of hand towards the middle to late 1980s. The writer was involved in one construction case at that time in which the costs of experts and lawyers were moving towards £11 million with no end in sight. In fact, the case became untriable and was settled amid a great deal of pain. In the 1990s, the need to reduce cost led to the implementation of civil litigation reforms in 1998/99, of which mediation was a part.
Towards the end of the 1980s the present writer and others felt that the advantages of litigation were in most cases severely outweighed by the disadvantages, and so the Centre for Dispute Resolution (CEDR) was formed. After a slow start, it took off, assisted in no small part by the support of the judiciary. Mediation is now largely accepted as part and parcel of the dispute resolution process. It is here to stay, essentially not as a strictly legal process but as a tool of management. The main advantages of mediation to the construction industry are speed, low cost and the retention by the parties of control of the settlement of the dispute. Average savings in international settlements are estimated at around £300,000 but are obviously far greater in large cases. The majority of these large cases settle within two to four days of actual mediating. Smaller ones normally take one day.
THE NEW CIVIL PROCEDURE RULES AND MEDIATION (ADR)
The term “mediation” is preferable to “ADR” but they mean virtually the same in practice. To understand how the new CPR may impact upon alternative dispute resolution and on the construction industry, it is useful to examine the relevant rules. The final version of the rules, entitled “Modernising Justice”, came out shortly after approval by the Lord
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