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PLUMBING CONNECTION
SUMMER 2015
DISPUTE RESOLUTION
M
uch has been written about so called ‘alternative
dispute resolution’ and how it is more efficient
due to being cheaper, quicker and allegedly more
effective as a method to resolve building and construction
and other types of disputes.
But what those in the industry wish to know is which
method, as an alternative to court action, is better as a
method to resolve a given dispute.
There are occasions where one does not have a choice as
to which method to use (e.g. where there is an arbitration
clause in a contract or where the parties have agreed to
submit disputes to arbitration); however it can often be
the case where there is a choice (outside also, the court
context).
They all have their advantages and disadvantages for
various reasons, but one thing they all have in common is
that they involve an independent third person in the dispute
and its resolution or attempted resolution; however the
involvement of that third party can differ.
It is to the first method of dispute resolution that this
article now turns; mediation.
MEDIATION
This is where the third party, according to the traditional
model, is merely a facilitator of the parties discussing the
dispute issues. They are meant to be very neutral, with their
‘backs to the chair’ in the sense of staying as far out of the
dispute as possible.
The mediator has to remain (as you would expect)
completely neutral, and not provide any advice in the dispute
and is certainly not to make any sort of determination as to
who is ‘right’ or ‘wrong’.
The cost of mediation is usually shared equally between
the parties however it is unfortunately the case that a
qualified mediator’s fees are not overly cheap.
Of course, readers of this article may have been ‘forced’
into mediation when embroiled in a court action of
some kind, in the sense that at some stage after a court
application is made, the parties are subject to a compulsory
mediation – they have no choice but to do so in the sense
that if they do not, their claim may be at risk of being struck
out or the claim may be decided against the defendant
or respondent if that defendant or respondent refuses to
mediate.
The good news, in this context, is that in the case of a
court imposed mediation, there are usually no fees for the
mediation, and sometimes depending on the court and the
type of case, a mediator’s fee does not have to be paid.
ARBITRATION
The arbitration process sees a binding decision made
at the end. That makes it unusual in the context of this
article as outcomes are not imposed on the parties during
mediation and conciliation.
Some parties like the fact that with arbitration, there
is the certainty that on the conclusion of the process, a
decision is made and in that sense, subject to the somewhat
limited rights of appeal, the dispute is over. It is however a
formal process and it has sometimes been called ‘private
litigation’ due to it being somewhat analogous to the court
process. Hence some parties may steer clear of this option.
Be aware of the possibility of an arbitration clause
in a contract where, once agreed to, make arbitration
compulsory.
WHEN IT COMES TO DISPUTE RESOLUTION, THERE ARE THREE ROADS ONE CAN GO DOWN – ARBITRATION,
MEDIATION AND CONCILIATION – BUT WHICH ONE IS MORE EFFECTIVE?
PAUL COTT
DIFFERENTIATES EACH AND
EXPLAINS WHY ONE METHOD MAY BE MORE SUITABLE THAN ANOTHER.
Mediation is just one type of alternative dispute resultion.
LEGAL MATTERS
PAUL COTT