Med-Ad The New Approach

The last two years have seen a rapid increase in the use of Mediation and Adjudication to resolve disputes in construction. The success of both approaches has swept away some of the pre-conceptions about dispute resolution, and has opened the way for a new combined approach Mediation/Adjudication which I have named Med-Ad. The combined approach allows the parties to explore the possibility of settlement in a constructive manner and for those matters not resolved to obtain a rapid decision by the person already familiar with the project and the issues. It does away with the stop-start approach in some standard forms thereby reducing confrontation.

It is important when adopting Med-Ad to follow a procedure which ensures that the person chosen can act as an Adjudicator if the Mediation part of the process does not succeed. A mediator has no obligation to report what he hears or learns, although private discussions could convey material or impressions that subsequently influenced his decision as adjudicator. In that case, if he participates in lengthy discussions during the mediation process there may appear to be apparent if not actual bias. His decision as an adjudicator may then be unenforceable and the process rendered a waste of time and expense.

If the above difficulties of combining mediation and adjudication are understood, they can be avoided with substantial benefits in cost and the quality of the resultant resolution.

Instead of meeting the parties separately, in Med-Ad the Mediator meets the parties’ professionals in a fact-finding exercise under his guidance. This is very effective and allows the Mediator to act as Adjudicator later if necessary.

Med-Ad commences with an agreement signed by the parties. A suggested example can be found at www.atkinson-law.com. The essence of any agreement is that at any time any party can refer the dispute to adjudication. The Med-Adjudicator follows the rules of natural justice as they apply to adjudication from the commencement of the process. He is master of the procedure subject to agreed requirements of the parties. The Med-Adjudicator meets with the parties together, but the essence of the procedure is that he meets with the professionals and key witnesses from each side together to discuss particular issues. Unlike a traditional Mediator, the Med-Adjudicator gives preliminary views to the parties. If the parties settle then this is recorded in a written settlement agreement. The Parties can stop the process at any time by referring the dispute to adjudication, but the process is intended to terminate after 10 days in any event. The preliminary views of the Med-Adjudicator are not binding on the parties nor on the Med-Adjudicator if the matter proceeds to Adjudication, but the views are recorded in any decision and either confirmed or distinguished in the decision.

The Med-Ad approach provides a rapid and cost effective means of dispute resolution. It is in keeping with the modern trend of reducing confrontation and encouraging dialogue.