In preparing our response to the MOJ's Call for Evidence on Dispute Resolution (DR), there were differing views on ADR in our wider DR team − and not only on the issue of compulsory ADR. The following are some of our Construction team's views and experience of mediation.

ADR, and particularly mediation, offers the potential for private, practical commercial solutions that courts cannot order. Recent examples include: contractors agreeing to return to site to remedy defects years after completion; and an agreement to change the on-site management team after a breakdown in relationships.

While ADR processes can give rise to negative or unintended consequences, their without prejudice nature means such consequences are usually limited to a delay in achieving settlement. A last minute change of position or an emotional outburst can indeed cause problems on the day and entrench views. However, skilled mediators will manage such behaviour, empower parties to have their say and create opportunities to bring the parties together. Even if tension on the day scuppers compromise, settlement often follows shortly after when the parties have cooled down and reflected on the downsides of progressing to trial.

Specific mediator qualifications are unnecessary, although it is important that mediators shadow experienced mediators several times before mediating themselves. Strong emotional intelligence is essential: mediators must be able to read the room and identify sticking points and issues/people blocking progress while keeping everyone engaged. Other key practical skills are project management (to keep [virtual] mediations fluid and to time) and technical competence in, for example, using online platforms/software and sharing documents.

While acknowledging that everybody has "off days", examples of mediator behaviour that hampers progress include: approaching clients without involving the lawyers after an unsuccessful mediation; not heeding views/suggestions on process made by the lawyers; relying on personal formulas and previous experience to dictate the approach to the day's proceedings rather than remaining flexible and innovative; misreading the parties; and not knowing when to push parties or back off.

Opening plenary sessions often waste time. Generally speaking, if one side is against holding a plenary session, a mediator should explore different options – at least initially. An explosive first meeting creates negative emotions that can take hours to assuage.

Parties should be encouraged to include multi-tier DR clauses in their contracts requiring engagement in ADR before starting court/arbitration proceedings – a form of self-imposed compulsion – breach of which risks a stay.

On compulsory ADR, we welcomed the CJC's conclusion¹ that court ADR orders (to engage, not settle) do not contravene the right to a fair and public hearing under Article 6 of the EHCR (subject to certain factors and the right to trial remaining open).

Subject to a proviso that compulsory ADR is inappropriate for certain disputes (for example, those of general public interest and those turning on contract interpretation that require judicial opinion), we suggest:

• substituting mediation for the Construction Pre-Action Protocol (PAP) meeting to take place after service of the Letter of Claim and Defendant's Response. PAP meetings rarely produce settlements or narrow the issues; and
• empowering judges, when giving Directions Orders, to set aside time for a suitable ADR process following the close of pleadings (and before disclosure).

ADR's objective is not to force parties to settle but to bring them to the table, to focus them on litigation's damaging effects "asap", before views become entrenched, and to facilitate commercial compromise.

This article was first published here by Construction law on December 3, 2021. You can subscribe to Construction Law's newsletter here.

1. Compulsory ADR, Civil Justice Council, June 2021