"The one thing I’d do differently is that I’d contact you and have a proper conversation about this before it went off the rails completely. Nip it in the bud. The guys on the ground were too close to it. We stopped working on site, thinking that would bring you to the table. You then served notice of breach. We thought we had nowhere to go but to make a claim. We went off to the lawyers quickly and the thing then became contentious."
Hindsight is a great thing. As a mediator, on nearly every occasion I sit with the principals – the decision-making clients – in the early part of the mediation day, I hear a conversation which sounds like this. Fortunately, in mediation, we can build on these words, and use this recognition that there is something to be learned by acknowledging what has gone wrong, to serve as a platform for meaningful negotiations. The water that has flowed under the bridge cannot be redirected but those who are now meeting on the bridge can survey both that which is past and that which is still to come. From that vantage point, it is possible to divert the resources, the management time, the opportunity costs, the thinking time, the budgets and the risks which are streaming towards the parties if they persist in an adversarial approach.
Modern problem-solving is moving away from the contentious, position-taking tendency which has characterised some of the construction industry’s approach to disputes, both emerging and deep-seated. It is possible to be rigorous and direct without getting stuck in a binary, win/lose impasse. Of course, most matters will still resolve even after such an impasse, but only after a lot of money, time and energy has been spent – and often at the expense of the speedy completion of a project and the contractual and professional relationships which are the essential glue of so much of what we all do.
What is remarkable about mediation, as an option for solving difficult problems, is how quickly it can be set up and how quickly it can produce an acceptable outcome. In just a few days or weeks, everyone can be gathered together for a meeting which lasts a day or two. With skilful guidance from the mediator, the parties can work through the real issues and find useful options to take matters forward sensibly. Nearly always, the dispute is sorted.
Two questions to ask, therefore, are these: "Are my professional advisers recommending mediation? Are they skilled in using it?" If the answer to either question is "No", the next questions are "Why not?" and "What are we, as clients, going to do about it?"