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Mediation is another form of Alternative Dispute Resolution which is similar to Conciliation but which differs in a number of key respects one of which is that it is less formal than other ADR processes. Mediation is a consensual non-judgmental process where an independent and impartial third party is appointed by the Parties to assist the Parties in reaching a mutually acceptable resolution to their dispute. The Mediator does this through skilful communication and through lowering tensions and expectations and through negotiation, collaboration and ultimately agreement.  Mediation is much favoured by the Irish Justice System with the Commercial Court mandating that all Parties that appear before it have considered a mediated settlement to their dispute. A party who is unwilling to consider and attempt a mediated solution may find that the Court will penalise that Party as to costs even in circumstances where it is successful with its case.

There are two main types of Mediation employed by Mediators namely facilitative and evaluative with the former being advocated by most Mediators which focuses in on the needs and interests of the Parties and where the Mediator does not make recommendations to the Parties or give his or her own opinion as to the outcome of the case or indeed predict what an arbitrator or judge might do. The Parties are in total control of the outcome even though the process is managed by the Conciliator.

Construction disputes tend not to lend themselves to facilitative mediation and thus, the evaluative approach is employed which is virtually identical to Conciliation. In evaluative Mediation, the Mediator will point out the strengths and weaknesses of the Parties case in private meetings and will endeavour to reach a settlement through diplomacy. In evaluative Mediation a Mediator may propose solutions to the Parties and may also issue a formal recommendation to the Parties as to the outcome of the issues in dispute. He or she will be concerned with the legal rights and obligations of the Parties and will use his or her expertise and experience to endeavour to resolve the dispute.

A mediated settlement agreement becomes binding upon the Parties and is enforceable in the Irish Courts.

The Construction Industry Federation (CIF) favours the use of Mediation and has introduced mandatory Mediation into its Conditions of Sub-Contract dated May, 2008 i.e. Clause 13(a)(3) & Clause 13(B) of the Agreement and Conditions of Sub-Contract for use in conjunction with the Forms of Main Contract for Public Works issued by the Department of Finance, 2007. Appendix Part 4 of the Form of Sub-Contract contains the CIF’s Mediation Procedure.

The Chartered Institute of Arbitrators publishes its own Mediation Rules – Practice Guideline 4 – Mediation Rules.

Brian M. O’Connor has undertaken a two day intensive Mediation training course run by the Chartered Institute of Arbitrators (Irish Branch) including work-shops and role play and has acquired knowledge of the various mediation processes and their operation. 

Mr. O’Connor’s expertise in Conciliation is readily transferable to evaluative mediation and while he does not practice as a facilitative mediator he possesses the requisite expertise and core skills in order to mediate Construction Disputes. 

Brian M. O’Connor advises Construction Industry Clients and represents Clients in Construction Mediations and Conciliations. OCCC Principal possesses the core skills and the right experience to act either as Construction Mediators or Advocates at Construction Mediations.