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It is helpful to consider dispute resolution options across a spectrum. At one end of the spectrum is the public and adversMS Sans Serif process of litigation, where the parties give the decision-making power to a judge. At the other end of the spectrum, the parties negotiate directly without the help of any outside party. This article focuses on the middle ground, where an independent third-party neutral is involved. Even here there is a fundamental choice to be made - will the neutral party have power to decide the dispute or will the parties retain that power. Regardless of the process choice, you will benefit from the assistance of a legal adviser.

This article is intended to help you and your adviser(s) make appropriate choices. It is based on my years of experience with the various processes, and the responses of the parties involved. It is also based on my personal tool-kit, so the advice may not apply with other neutral parties. I consider it my responsibility to be flexible and, having explained the options, to provide the service that the parties require. Hence, the basic choice between mediation and arbitration (explained below) is for the parties to make. With either, there are a host of further process options that can be used, with the parties’ consent, according to the particular circumstances.

MEDIATION

In mediation, a mediator helps the parties to agree a mutually-acceptable outcome. The mediator is an impartial third party who helps them to negotiate and settle the issues in dispute, but has no power to impose a solution.

The main advantages of mediation are:

• the parties remain in control of the process
• better relationships between the parties
• less disruption of current work
• other parties (e.g. subcontractors, insurers) may be included
• confidentiality is maintained
• little preparation is needed to start the process
• savings of time and cost can be achieved
• the parties decide the outcome
• the outcome does not have to conform with any concept of what is the \"right\" legal answer, and is not limited by any \"contract\".

Mediation is especially appropriate where:

• relationships between the parties are important and continuing
• bad communication and resultant misunderstanding are involved
• the parties need the opportunity to talk openly and frankly
• technical or legal uncertainties are involved
• numerous or complex issues are involved
• confidentiality is important

Mediation may involve consideration of the law. The emphasis, however, is on minimising the need for formal legal procedures, by involving the parties and their advisers as joint problem-solvers to develop an acceptable outcome and enhance their long-term relationship.

A perceived disadvantage of mediation is that the parties may not reach agreement, and the dispute may continue. This risk is minimal, as my experience indicates that most impasses can be overcome, and about 95% of disputes are resolved through mediation. Furthermore, the outcome is usually amicable, with both parties often saying \"why didn’t we do this years ago?\".

A small number of disputes will be more difficult (but usually not impossible) to resolve through mediation, for example where: