The judicial delays necessary to treat disputes in the field of construction can be counted in years. against them in a subsequent judicial procedure. The parties remain masters of the final decision which will be made by them together. In what circumstances may the use of mediation be preferable to other forms of ADR or simple litigation? In construction, especially for large projects, internal standing committees for dispute resolution can be set up to manage any conflicts that arise during project execution. These committees can be very quick and efficient in managing disputes. However, the decision remains imposed by the committee even if it is not final. Indeed, the parties always have the right to take action before the common law courts if the decision does not suit them, which brings us back to square one for certain cases. Unlike arbitration or litigation, mediation is a process that focuses on respecting the respective interests of the parties rather than directly applying the applicable law or taking the form of a consensual tribunal. In mediation, the solution does not reflect the mediator’s view or interpretation of the law or the dispute but results from the sole will of the parties. The final decision will be by mutual agreement of the parties and is not made or imposed by the mediator. The parties will in some way judge themselves. Finally, mediation is a low-cost process compared to other alternative dispute resolution methods in the construction field. It preserves and strengthens longterm business relationships by restoring dialogue between the different actors in the dispute. What skills and knowledge should a mediator possess in order to effectively mediate on a construction dispute? Mediation is a unique form of participatory justice because it brings the parties to discuss the dispute by their own will. They will be led to listen to each other to better understand each other’s position in a dispute. It sounds easy in a sentence, but it is quite a challenge in the mediator’s field. The mediator’s construction skills will be important, but managing the different parties in a mediation is even more important. The personality of the mediator must inspire confidence in all parties. The mediator must also be careful with body language that may indicate a position that is being interpreted by one of the parties, which will lead to a certain failure of the mediation. The management methods for conducting a mediation remain more or less the same in many areas. However, the mediator must be a good listener, eloquent and open-minded. The mediator must be patient and calm in all circumstances. Essentially, he or she must have poise and demonstrate unquestionable impartiality. How can parties and legal counsel work to ensure that mediation under these circumstances has the best possible likelihood of success? Mediation should be a prerequisite to any other alternative dispute resolution. It should be automatically advised as the preferred method of settlement to the parties by their legal counsel. It is recommended that all model construction contracts and service agreements include sections detailing the mediation process as the first resort for dispute resolution. It is also important that third-party mediators be selected through a list of criteria. It is imperative that the chosen mediator have knowledge of the subject matter of the dispute as well as a number of years of experience as a mediator. Often the appointment of a particular mediator is already pre-established at the conclusion of the contract. The parties will need to be informed of what mediation is and its benefits in business before the contract is concluded. These procedures will allow the parties to 54 LAWYER MONTHLY MAY 2023
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