"For me it drew a line under the matter.  Whatever happens in the future I know we did this well".

Construction Mediation

Adjudication has become too expensive for most common construction disputes. For a fairly "normal" dispute involving competing claims for payment or poor workmanship, irrecoverable lawyers' fees could easily top £50,000 or £100,000 or maybe more. 

As a cost effective alternative to adjudication, Oxford Mediation has launched its Oxford Mediation Construction Scheme, combining evaluative mediation and early neutral evaluation. Please see HERE for our construction mediators.

Oxford Mediation still also provides facilitative mediators for traditional mediation of construction disputes. Please see HERE for our commercial mediators.

THE OXFORD MEDIATION CONSTRUCTION SCHEME

An evaluative mediation and early neutral evaluation scheme for construction, engineering, property development and planning disputes

How the Oxford Mediation Construction Scheme works:

For an agreed fixed fee, an experienced mediator will consider the evidence and arguments presented by the parties in dispute and will:

  • act as mediator in a mediation between the parties, and if there is no settlement;
  • provide a written, neutral, confidential, reasoned early neutral evaluation ("ENE") of the issues in dispute ("the decision").

What's different about the Oxford Mediation Construction Scheme?

In most traditional forms of mediation, like Oxford Mediation's "Commercial" and "Workplace" mediation schemes, the mediator facilitates negotiations, and the mediator generally won’t express opinions about the issues in dispute.

In evaluative mediation, the mediator may use his / her experience to more rigorously test the parties' positions and, where the mediator considers appropriate, may express a view about the dispute privately to one or other party.

The mediator does not provide advice to the parties during or after the mediation. Any view the mediator expresses would be based on the limited amount of information available at the time, rather than on all of the evidence a judge or arbitrator might have. So the parties may still wish to have their own legal advice.

The Oxford Mediation Construction Scheme combines evaluative mediation with early neutral evaluation.

What is ENE?

Early Neutral Evaluation, ENE, is a form of alternative dispute resolution where a neutral (an "Evaluator") provides an opinion about the issues in dispute based on the evidence available, and in that sense makes a "decision" about the parties' competing claims. The Evaluator's decision is not binding and is not enforceable through the Courts or anywhere else. However the parties may decide to accept the decision and agree to abide by it, rather than incur the costs, and face the commercial disruption, involved in a formal dispute resolution process.

What is the process and timetable?

The mediator and parties agree a timetable. Typically the timetable might be:

  • Day 1- The mediator proposes terms of appointment, invoices the parties, and proposes a timetable for the parties to agree.
  • Day 4 - The parties provide the mediator with position statements / details of their claims, and all documents and anything use they wish the mediator to consider.
  • Day 8 - The parties participate in a mediation meeting of up to around 6 hours. If the parties settle at the mediation meeting they draft and execute a settlement agreement; and the mediator makes arrangements to return to them half of the fees paid by the parties and issues credit notes.
  • Day 15 - If not settled, the mediator sends a written non-binding, confidential decision to both parties, covering the issues in dispute.

What are the advantages of the Oxford Mediation Construction Scheme over adjudication and traditional, facilitative mediation?

  • The mediator's costs are fixed and capped at the outset;
  • The mediation process is consensual, flexible and the parties have control;
  • It is less adversarial and much less costly than adjudication;
  • The process is time limited, unless agreed otherwise, but the parties are free to settle their disputes at any time;
  • The mediator undertakes an early neutral evaluation of the disputes referred and produces a non-binding written opinion (the decision) allowing the parties to take a commercial view of their position and settle their disputes;
  • The process may give the parties some idea of how the issues in their dispute might be viewed by a tribunal;
  • The parties may agree to accept the mediator's decision but, if not, any rights they have to adjudication, arbitration or litigation are unaffected.

Does the Oxford Mediation Construction Scheme have to be used in construction disputes referred to Oxford Mediation?

No – if the parties in dispute want a traditional, facilitative mediation in a construction dispute, then Oxford Mediation will provide an experienced, facilitative mediator. Any of our commercial mediators will be able to assist and act as mediators in construction disputes at their usual commercial mediation rates.

What about legal advice?

If you are not sure about your legal position, please contact a solicitor and take legal advice.

Are you a mediator working in construction?

Mediators may apply to join the Oxford Mediation Construction Scheme panel if they are:

  • experienced mediators having conducted more than 25 civil or commercial mediations;
  • insured and Civil Mediation Council compliant;
  • trained by one of the recognised institutions as adjudicators or arbitrators;
  • construction practitioners and senior members of one of the professional construction institutions (ICE, RIBA, RICS, IMechE, IEE, CIOB etc.), or construction legal specialists (as evidenced by membership of TeCSA, Tecbar, Society of Construction Law etc.). 
  • Mediators accepted on to the Oxford Mediation Construction Scheme panel would be admitted as "Construction Members" of Oxford Mediation under Oxford Mediation's Constitution.

For more information contact David Evans on 0791 716 3712 or email David.Evans@blakemorgan.co.uk

The Oxford Mediation Group is a panel of experienced mediators who provide mediation and dispute resolution both nationally and internationally. We provide quality professionals who are able to transfer their skills and specialist knowledge to any dispute. Identify the appropriate experience and expertise from our panel of mediators

copyright Oxford Mediation Group 2010