| content"> Introduction | | | | traditional mediation, as the mediator would be fully |
| The Centre for Effective Dispute Resolution [CEDR] | | | | aware of the issues involved in the dispute and in |
| was established in 1990, with the aim of providing | | | | particular the specific issues on which the parties |
| Alternative Dispute Resolution [ADR] techniques and | | | | should focus. Notwithstanding this possible saving in |
| educating businesses and legal communities in the use | | | | mediation costs, the process is still additional to the |
| of ADR. | | | | original adjudication costs incurred by both parties. |
| CEDR’s dispute resolution service, aptly named | | | | In addition to the above concerns regarding the |
| CEDR Solve, is one of the leading independent dispute | | | | process itself, further questions arise with regards to |
| resolution services in Europe and has experience of | | | | the use of CEDR’s rules within the industry. |
| over 14,000 dispute referrals, the majority of which | | | | Currently, the Scheme for Construction Contracts is |
| have involved mediation. | | | | applied to all construction contracts that do not contain |
| As identified on its website, CEDR has been | | | | provisions for adjudication. With regards to those |
| instrumental in bringing mediation into business | | | | contracts that do contain adjudication provisions, |
| practice, especially in raising its profile within the | | | | including most standard forms, these also tend to refer |
| construction industry. Its mediation services have an | | | | to or at least reflect the Scheme. The resolution |
| impressive settlement rate of over 70 percent. | | | | method selected by parties to settle disputes is often |
| Although mediation is perceived as being its primary | | | | determined by the form of contract in use, which may |
| speciality, CEDR offers a comprehensive range of | | | | prove to be a barrier for the widespread use of |
| dispute resolution processes and has been a leader in | | | | CEDR’s rules. |
| innovative dispute resolution techniques for nearly two | | | | Finally, once over the difficulties associated with the |
| decades. In fact, CEDR probably provides every form | | | | adoption of CEDR’s rules and the |
| of ADR technique you are likely to have heard of, and | | | | parties’ agreement to their use, would parties |
| some forms that you probably haven’t heard of | | | | actually be inclined to refer an adjudicated dispute to |
| — yet. In September 2008, CEDR Solve proved | | | | mediation? |
| innovatory yet again with the launch of its updated | | | | In the circumstances that a party is reasonably |
| Rules for Construction Adjudication. Granted, | | | | confident with its case and believes that the |
| adjudication is by no means a new discovery, but | | | | adjudication has been successful, why would that |
| when provisions for the use of mediation are added to | | | | party want to mediate? |
| the process, it puts a new perspective on a tried and | | | | Conversely, if a party to an adjudication concludes that |
| tested method. | | | | its argument is not as robust as it might have originally |
| The Process | | | | thought, why would that party want the adjudicator, |
| CEDR’s Rules for Construction Adjudication | | | | who is fully aware of the weakness of the case, to |
| provide for a standard 28-day adjudication in | | | | act as mediator? |
| accordance with the Housing Grants, Construction and | | | | In either case, the temptation to open the envelope |
| Regeneration Act 1996, with the option to refer the | | | | and put an end to the ongoing suffering caused by the |
| dispute to mediation after the adjudication has taken | | | | dispute would surely be too much. |
| place. | | | | Advantages |
| On reaching a decision, the adjudicator may invite the | | | | Despite the discernible negativity above, it is not all bad |
| parties to refer the dispute to mediation. If the parties | | | | news for the CEDR Solve Rules for Construction |
| refuse, then it is business as usual and the decision will | | | | Adjudication. |
| be thrust upon the parties. If the parties are receptive | | | | With regards to the difficulties mentioned above |
| to the idea, the adjudicator’s decision remains | | | | concerning the ability of an adjudicator, having reached |
| sealed and a timetable for mediation is agreed. | | | | a decision, then to facilitate a negotiated settlement, |
| At this stage in the proceedings, the adjudicator | | | | this is very much dependant on the skill and |
| miraculously undergoes a transformation from a | | | | competence of the adjudicator/mediator involved in |
| judgemental, evaluative, decision maker to a facilitative, | | | | the process. |
| creative problem solver. The mediator, formerly known | | | | As previously discussed, the attributes of an |
| as the adjudicator, now has 28 days to facilitate a | | | | adjudicator and a mediator are very different, each |
| settlement between the parties. | | | | process requiring different techniques, training and |
| If for any reason a settlement cannot be reached | | | | guidelines in order to be successful. |
| within 28 days, or either party decides to abandon the | | | | As demanding as this seems, CEDR’s |
| mediation, the mediator will don his adjudicator’s | | | | Adjudication Panel boasts some of the best-known |
| cap, dust off the envelope containing the adjudication | | | | and most respected adjudicators in the country, who |
| decision and impose its contents on the parties as if | | | | would be quite capable of ensuring that each dispute, |
| the mediation had never happened. | | | | having gone through adjudication and which is |
| If, however, a settlement is reached by the parties | | | | subsequently referred to mediation, is appropriately |
| during the mediation, the content of the envelope | | | | dealt with in order to facilitate the best possible |
| remains with the adjudicator and the parties remain | | | | resolution for each party. |
| blissfully unaware of his/her decision. | | | | Following the comments above concerning the |
| Disadvantages | | | | widespread use of CEDR’s rules, this remains |
| On the face of it, the process sounds simple and will | | | | speculative and only time will tell if the process will be |
| result in the settlement of a dispute, be it temporarily | | | | accepted by the industry. |
| binding if imposed by way of the adjudicator’s | | | | If it is accepted, the question of whether a party would |
| decision or binding if mutually agreed between the | | | | be inclined to refer a dispute that has been through the |
| parties in the mediation. However, several issues of | | | | adjudication process to mediation still remains. As |
| concern arise in combining an evaluative | | | | detailed above, the adjudication process has the ability |
| decision-making process such as adjudication, with a | | | | to enlighten parties as to the strengths and |
| negotiated settlement facilitated by a mediator. | | | | weaknesses of their case. On the occasion that a |
| The first issue is that of the adjudicator/mediator. The | | | | party becomes confident with its case and believes |
| role of the independent third party in the two types of | | | | that the adjudication has been successful, then |
| dispute resolution procedure is very different. | | | | mediation is unlikely to be pursued. |
| Adjudication has now become a familiar and well used | | | | However, it is wrong to assume that every |
| procedure in the construction industry, in which the | | | | adjudication will polarise the parties’ |
| adjudicator draws his/her conclusions and makes a | | | | expectations with such clarity. Granted, an adjudication |
| decision using predetermined criteria to assess the | | | | may highlight the strengths and weaknesses of a |
| credibility of the parties’ arguments, allocate the | | | | party’s case, but it will also highlight the |
| burden of proof and/or apply relevant law, rules or | | | | strengths and weaknesses of the opposing |
| contract conditions to the situation. Simply, the role of | | | | party’s case. More often than not, the course |
| an adjudicator is to evaluate the situation and decide | | | | of an adjudication will turn some polarised black and |
| the issues in dispute. | | | | white’ opinions into uncertain grey |
| The role of a mediator, on the other hand, is to | | | | areas’. This uncertainty may just be enough to |
| encourage the parties in dispute to evaluate their own | | | | persuade parties to an adjudication to keep the |
| situations and to assist the parties in making their own | | | | envelope sealed and mediate. |
| decisions, whilst remaining neutral at all times. This is not | | | | If the mediation succeeds everyone is a winner. The |
| to be confused with the required neutrality of an | | | | parties are hopefully happy with a mutually beneficial |
| adjudicator, as they too have to remain impartial. | | | | solution, with business relationships hopefully repaired |
| However, when all of the evidence has been | | | | slightly following an adversarial adjudication, and the |
| assessed and the credibility of the parties’ | | | | adjudicator/mediator enhances his/her status as a |
| arguments has been scrutinised, the adjudicator must | | | | dispute resolver. |
| ultimately side with one of the parties and make a | | | | Conclusions |
| decision. The mediator facilitates a decision being | | | | The CEDR Solve Rules for Construction Adjudication |
| reached by the parties. | | | | are still relatively new, and several questions remain |
| It is therefore questionable whether an adjudicator, | | | | unanswered: |
| who has undertaken the gruelling process of coming to | | | | Will the rules be used? |
| a decision based on the facts of a case, can | | | | Would a party refer an adjudicated dispute to |
| appropriately facilitate communications between the | | | | mediation? |
| parties and focus their interests to arrive at a mutually | | | | Is an adjudicator able to mediate the same |
| beneficial resolution of the dispute. | | | | dispute? |
| Not only does the mediator have to remain impartial | | | | Only time will tell whether the idea can be accepted by |
| throughout the process, the mediator must refrain from | | | | the construction industry, and whether mediation |
| giving away his/her position in relation to the dispute | | | | following an adjudication can be successful. However, |
| and the decision gathering dust in its sealed envelope. | | | | in certain circumstances, with the correct adjudicator, it |
| The second issue in relation to the combination of the | | | | may just be the best option to put aside the impending |
| two forms of dispute resolution involves the root of | | | | decision, attempt to rebuild relationships and try to |
| most conflict — money. | | | | arrive at a mutually beneficial agreement. |
| It could be argued that the mediation part of the | | | | Finally, with regards to CEDR, it continues to innovate |
| process would be relativity low cost, in comparison to | | | | and remains at the forefront of ADR. |