黑洞社区

The Centre for Effective Dispute Resolution, you and I know it as CEDR, is one of the leading mediator appointing bodies. I remember going to its inaugural meeting back in 1990. And truth to tell, CEDR got mediation firmly embedded in the dispute-solving portfolio. Then, 10 years ago, it also became an adjudicator-nominating body. It is about to innovate again. 鈥淐EDR-Solve鈥� has bolted adjudication and mediation together. It is standard 28-day adjudication in accordance with the Construction Act plus optional provisions for mediation. Call it

Adj-Med. And from my own experience, it works well. I have even done arbitration then bolted on mediation; call that Arb-Med.

Now, some of you will have heard of Med-Arb. Don鈥檛 get that confused with what CEDR 鈥揝olve has come up with here. This is not where a failed mediation allows the mediator to impose a binding decision on the parties. This time it鈥檚 the other way around. Let me explain. You are entitled under the Construction Act to bring your commercial dispute to an adjudicator. The adjudicator does the business and, at high speed to a strict timetable, produces the award. It is binding; the court will enforce the decision. The binding decision lasts until the whole dispute is heard over again via litigation or arbitration or is settled by agreement. Now let me tell you how CEDR-Solve Adj-Med works.

You will learn during the adjudication a damn sight more about your own strengths and weaknesses of argument; That sure-fire position you thought you had may not be quite so bullish

CEDR appoints the adjudicator. Then, shortly before the adjudicator is ready to publish the binding award, a note invites both parties to request the adjudicator to place the forthcoming adjudicated award in a sealed envelope. The note goes on to invite the parties to now agree an extension of time for publication of the award so as to mediate their dispute 鈥� not knowing what is in the sealed envelope.

Why? Why not just 鈥渙pen the box鈥� and see what is inside? Look, an ordinary construction dispute is like the cat with nine lives. Disputants dodge death by a whisker. The first life of the dispute is where contractor and customer get at odds. The quarrel itches and irritates but goes nowhere. We invented adjudication 10 years ago to stop the itch. So life two is getting a pro-tem binding decision from an adjudicator. The game might stop there but either party has the right to take the dispute to full blown litigation. This so-called right has to be met by a pocket, nay wallet, nay, bank full of spare cash. Itches, give way to aches; aches give way to pain. Believe me, at one stage or another each and every party wants to stop. We pretend we don鈥檛, but we do. So the route to relief is to mediate. Commercial midwives, coax, cajole the warring parties to pack up. Settle.

The new idea fits beautifully with adjudication. Mediate at or near the end of the adjudication. I called it the cat鈥檚 second life. I tell you this: if you thought you knew what your opponent鈥檚 arguments, strengths and weaknesses were before the adjudication, you will learn during it a damn sight more about your own strengths and weaknesses of argument. That sure-fire position you thought you had may not be quite so bullish. By persuading yourself not to open the adjudicator鈥檚 sealed envelope, by persuading the adjudicator to now become the catalyst for finding a mediated conclusion, you may get the whole matter put behind you.

This so-called right to take your dispute to litigation has to be met by a pocket, nay wallet, nay, bank full of spare cash

Unlike 鈥渙rdinary鈥� mediation, this Adj-Med system always produces a result. The failed ordinary mediation means that the parties have wasted their time, money and effort. It has canvassed arguments via a mediator but the mediator hasn鈥檛 the power to impose a decision. In Adj-Med, the mediation has a huge piece of persuasion to settle by a negotiated signed voluntary deal. It鈥檚 this. If there is no voluntary settlement, the adjudicator鈥檚 award is only then revealed. This type of mediation immediately following the adjudication has a different complexion to ordinary mediation. The mediator is right inside all the materials and arguments 鈥� so too both parties. This time, the adjudicator knows what each party is in for according to his still secret award. The envelope will be opened today at 5 o鈥檆lock . . . unless you settle! Oh boy, it works. As to what is in the secret envelope, well now, since you鈥檝e settled, it鈥檚 none of your business. Try it.

Tony Bingham is a barrister and arbitrator at 3 Paper 黑洞社区s Temple