Quantity Surveyors in Mediation

Quantity surveyors are, and should be, at the forefront in promoting alternative dispute resolution (ADR) in the construction industry. The primary role of a quantity surveyor is to guide projects to the most economical solutions and the best financial management to the benefit of all stakeholders in general and mediation in particular. Mediation provides a cost and time effective method of dispute resolution and should be the first point of call for the industry. A mediation session normally lasts for approximately one to two days, whereas arbitration or litigation can take several weeks or months and often ends up costing the parties as much, if not more than the amount in dispute. Mediation can be scheduled efficiently with the parties generally agreeing on a mediator and his brief. As the mediator is chosen by the parties, the process can be expedited rather than waiting for the Court’s next available hearing date. This can be particularly advantageous when a dispute occurs during a project as it allows works to continue notwithstanding the mediation. The role of a quantity surveyor in mediation is similar to that of an expert witness in litigation. Quantity surveyors provide valuable information for the mediator and the parties, allowing them to better understand the matter in dispute as well as facilitating the discussion so that the issues that have arisen can be properly discussed, quantified and dealt with. The quantity surveyor can provide an accurate valuation of the issues and the monies so parties can resolve real costs rather than ambit claims. This can add an additional layer of credibility to the claim or counterclaim and assist in fact finding by the mediator. Increasingly, ADR clauses are being included in construction contracts to facilitate swift resolution of the issues in dispute with mediation required prior to arbitration or litigation. Of course, mediation is a non-binding process and most parties choose to execute a Deed of Settlement and Release in order to bar any further claims arising from the same issues on the conclusion of a successful mediation.

Quantity surveyors can actively benefit their clients by suggesting mediation. Its time and cost-effective nature extend itself as an incredibly efficient solution for disputes when it works.

THE RISE OF MEDIATION

Within the global construction industry, mediation is fast becoming an increasingly common and effective method of ADR. With a steady rise with matter settled by mediation to 13% in 2019 in the US of commercial and residential disputes I . The United States Department of Justice notes that the resolution rate for voluntary ADR proceedings was higher at 75% than court order proceedings at 55% in 2017 II . Commercial and civil mediation rates have remained remarkably high in the UK 87% from 2014 until 2016 III .

The success of mediation is further evidenced by the Courts’ position in Australia with court ordered mediation becoming a more commonplace one or more times before the final determination of the proceedings.

THE MEDIATION PROCESS

Prior to mediation, it’s important to familiarise yourself, your client and the approach your client’s lawyer wishes to take with the process. The mediation process differs greatly from conventional dispute resolution strategies, such as litigation and arbitration proceedings. It is important to understand the mediator’s role in the process, which is only facilitative rather than directive. The mediator must remain a neutral party throughout the process and allow both parties to discuss their grievances and ideally come to a mutual agreement IV

. In the UK alone 67% of cases were settled the day of the mediation V .

Ensure you’re aware of any legal implications and restrictions during and prior to the mediation prevents any issues of legality with possible solutions that are generated. During mediations, you may speak for your client or advise them as they speak. Mediation is a particularly flexible process; mediators will facilitate conversations to ensure both parties get equal time to speak and be heard. If private counsel is required during the mediation process, there’s always an opportunity to ask the mediator for a break and allow you to discuss your client’s options privately, as well there is usually a mandated one-onone session with the mediator which will occur at a later point during the mediation process.

ETHICS IN MEDIATION

Those involved in mediation have a responsibility to uphold certain ethical standards, this is second nature to quantity surveyors. It is always your duty in all respect to give honest and true monetary values. These standards are also enforced and prescribed by AIQS. This standard states that members should carry out their professional duties ‘ethically, with honesty, competence, and in good faith, without personal bias’ VI

as well as stating that in areas of documentation, accuracy, timelines and fees that is vital that quantity surveyors provide their clients with ‘the information and professional guidance necessary for the client to make an accurate and informed decision about what performance standards, outcomes and risks can be expected in relation to the services they are engaging.’ VII .

CONCLUSION

Mediation is increasingly vital to the construction industry and the assistance which can be provided by a quantity surveyor for each of the parties is substantial.

This article has been written for Built Environment Economist by Doyles Construction Lawyers. www.doylesconstructionlawyers.com

https://www.finra.org/arbitration-mediation/dispute-resolution-statistics https://www.justice.gov/olp/alternative-dispute-resolution-department-justice https://mediatelegal.co.uk/civil-commercial-mediation-uk-2016-analysing-cedr-seventh-mediation-audit/ https://quantitysurveyor.blog/2019/08/28/what-is-the-mediation-process/ https://mediatelegal.co.uk/civil-commercial-mediation-uk-2016-analysing-cedr-seventh-mediation-audit/ http://www.aiqs.com.au/IMIS/documents/Code%20of%20Professional%20Conduct.pdf http://www.aiqs.com.au/IMIS/documents/Code%20of%20Professional%20Conduct.pdf I II III IV V VI VII