Does it make any sense to talk about the "evolution" of construction law? Thirty years ago, the term "construction law" was hardly ever used, but since then we have seen the introduction of specialist building law reports, the foundation of a flourishing Construction Law Society and lawyers holding themselves up as specialists in the area.
The question of whether construction law is evolving presupposes that it is in competition with other species. And the most cursory look at the present scene confirms this is, indeed, the case. If the law cannot break free from its well-deserved reputation of being too slow and expensive, we will witness the inexorable advance of Alternative Dispute Resolution and other rivals, which concentrate on business solutions as opposed to legal remedies.
It is now clear that, in the wake of the legal reforms initiated by Lord Woolf, the courts will be given powers to require litigants to try to resolve their disputes by mediation and other forms of ADR before allowing them to thrash things out in court.
But who would be singing the praises of ADR if the legal system could boast a combination of sensible, intelligible rules, speed of response and pricing arrangements proportionate to the issues at stake?
In one view, once the parties have decided to go to court, they should be allowed to exercise their civil rights and to have their grievances decided according to law. Why should the judges have the right to force them to engage in negotiations against their will, and be able to impose cost penalties on those who resist?
In the past, the various divisions of the High Court competed for business by evolving different remedies. Today, there is an increasing interest in the rival virtues of court proceedings as against arbitration, in the light of the new Arbitration Act. Surely, the courts should be competing with ADR rather than promoting it.
In evolutionary terms, the decision to inject ADR into the bloodstream of the legal system may subsequently be seen as a major mistake. A bit like the land iguanas on the Galapagos Islands trying to learn how to swim.
The virtue and attraction of the law courts is that they dispense remedies based on rules, not bargaining power.
This is not to argue that ADR does not have a proper place in the resolution of disputes. Quite the contrary. The point is this: the decision on how to sort out a dispute should be made long before the parties have decided to go to court.
In a recent case in the commercial court, Mr Justice Colman was asked to "stay" the proceedings because a clause in the contract between plaintiff and defendant required the parties to submit disputes to their parties' senior representatives for negotiation, and thereafter to a neutral party for mediation. Only then could court proceedings start.
The judge refused to do so. There had already been months of negotiations; an enforced mediation would be a waste of time.
Parties in dispute should have someone to turn to for advice on available ways of sorting it out. In some US courts, for example, those in dispute can get advice from experienced "dispute brokers" as to how they should proceed 鈥� court, arbitration, ADR and so on. This is the point at which mediation would be recommended, if appropriate.
Is there room here for another new species of advisers? Darwin would surely be pleased with that.
