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There have been many attempts to define mediation; hereunder are two efforts that sum it up fairly succinctly:
Brown and Marriott ADR Principles and Practice (Sweet and Maxwell, 2nd Edition, 1999):
“Mediation is a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute.”
Though this does not explain what happens at mediation; for that, the step by step explanation in Beer and Packard The Mediator’s Handbook(New Society Publishers, 2nd Edition, 2013) at page 3 is of some assistance:
- A process
- For resolving disputes
- Where an intermediary helps
- Conflicting parties
- Have a conversation
- To jointly resolve their concerns”
Most of the courses in mediation and indeed most of the texts on the topic are centred around facilitative mediation. This is mediation where the mediator facilitates the parties to have a discussion around the dispute, while being particularly careful not the express views on the matters. This is mediation in its purest form.
In construction mediation the parties more often than not appoint an expert from the construction industry to act as mediator. In so doing, the practice has evolved where the mediator takes a much more active approach and is far more evaluative in the mediation. That is to say that, in private sessions with the parties, the mediator will often express views on the strengths and weaknesses in their respective cases. This approach is very well suited to mediation in construction, where the parties may have become entrenched in their positions and a skilled third party neutral can help to get them to become more realistic in their expectations.
A mediator taking such an evaluative approach has to be extremely careful to remain impartial, and more importantly appear so, in order to retain the parties' trust. If a mediator expresses their views in too judgemental a manner they run the risk of alienating one of the parties and the mediation collapsing.
An analysis of evaluative mediation in construction will form the basis of a paper to follow.