The factors influencing mediation referral practices and barriers to its adoption. A survey of construction lawyers in England and Wales

• Author: Andrew Agapiou
• Position: Department of Architecture, Strathclyde University, Glasgow, UK
• Pages: 231-247

The factors inuencing

mediation referral practices and

barriers to its adoption

A survey of construction lawyers in England

and Wales

Andrew Agapiou

Department of Architecture, Strathclyde University, Glasgow, UK

Abstract

Purpose – Following an analysis of English construction lawyers’ perceptions, attitudes and practices

relative to mediation, this paper aims to offer an insight into the initial stages of the legal

decision-making process, involving an examination of the degree of control construction lawyers’

exercise over the decision-making process itself, as well as an analysis of the factors that determine the

decision to use mediation. The empirical work thus far focuses on the different potential barriers to

mediation that typically characterize the relationship clients’ and legal advisors, addressing to

divergent monetary interests, non-monetary and psychological interests and barriers in the principal–

agent relationship.

Design/methodology/approach – Based on a quantitative survey of legal advisors in England and

Wales (n⫽212), the purpose of this paper is to explore mediation, specically the factors that support

its use, barriers that hinder use and the perceptions of the efcacy and level of effectiveness of the

process.

Findings – The ndings indicate that more experienced construction lawyers reported using

mediation to a far greater extent than less experienced lawyers, consistent with the proposition that

more experienced lawyers develop a cooperative reputation as a function of their professional

encounters. The results reveal that the absence of good mediators, inuence of the courts, inability to

create enforceable precedents, negative experiences and preferences for other forms of dispute

resolution do not seem to be signicant factors militating against the referral of cases to mediation. It

would also seem that self-reported nancial interests do not deter construction lawyers from referring

cases to mediation. Nevertheless, there may be a need to develop more standardised approaches to

setting mediation fee scales to minimise lawyers’ diminished fee income as a consequence of their

increased involvement as advocates or counsel in mediated cases.

Originality/value – The recent Jackson Cost Review has provided greater impetus for the use of

mediation. A failure to respond to a request to engage in mediation may also be deemed unreasonable

by the courts, as, for example, in the case of PGF II SA v. OMFS Company 1 Limited. Nevertheless, while

the Civil Procedure Rules are being used by the courts in England and Wales increasingly to

“encourage” parties to look to alternative methods to settle differences, little can be gleaned from the

literature on the central role of construction lawyers in mediation, and more specically the extent to

which they refrain from referring cases to mediation in a manner inconsistent with their clients’

interests. Much of the construction-based research so far has focused on how mediation is bearing up in

practice, its use, appealability and possible improvements.

Keywords Mediation, Barriers, Construction, England and Wales, Lawyers, Referral

Paper type Research paper

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1756-1450.htm

Mediation

referral

practices

231

Received 14 July 2014

Revised 23 November 2014

Accepted 17 February 2015

InternationalJournal of Law in the

BuiltEnvironment

Vol.7 No. 3, 2015

pp.231-247

©Emerald Group Publishing Limited

1756-1450

DOI 10.1108/IJLBE-07-2014-0018

Introduction

Burger (1982), a former Chief Justice of the USA, once said:

The obligation of our professions […] is to serve as healers of human conict. To full our

traditional obligation means that we should provide mechanisms that can produce an

acceptable result in the shortest possible time, with the least possible expense and with the

minimum stress on the participants. That is what justice is all about.

Certain questions regarding the value of litigation require to be directed at Warren

Burger’s comments. Dispute resolution is a service industry and must recognise client

needs (Bok, 1983). This theme has been taken up by many leading members of the

judiciary and was the cornerstone of Lord Woolf’s interim and nal reviews of English

civil litigation, Access to Justice (Woolf, 1996). The recommendations made by Lord

Woolf were embodied in the Civil Procedure Rules (CPR) and, among these, mediation

was brought in as an option for consideration before court proceedings commenced

(Roberts, 2002).

With the introduction in April 1999 of the CPR proposed by Lord Woolf, judges in

England have the power to stay proceedings for one month, either with the consent of

both parties or on their own initiative to allow a period for mediation to be conducted

(Genn, 2013).

CPR Rule 1.4 provides that:

The court must further the over-riding objective by actively managing cases.

Active case management includes […] (e) encouraging the parties to use an alternative dispute

resolution procedure if the court considers that appropriate and facilitating the use of such

procedure.

The English courts also have the power to use costs awards as a sanction against parties

who refuse unreasonably to attempt mediation. This ability in the English Rules to

encourage the use of mediation has been backed up by comment and orders from judges

in a series of cases since 2000, culminating in the decision of the Court of Appeal in

Halsey v. Milton Keynes NHS Trust decided in May 2004. In Halsey, the Court of Appeal

examined the question of when a costs sanction would or would not be imposed on a

successful party who had unreasonably refused to enter into mediation beforehand

(Hodges and Tulibacka, 2009).

The decision in Halsey was that the refusal of the NHS Trust to mediate was

reasonable because they believed correctly that they would win and the claimant failed

to satisfy the test of establishing that mediation had a reasonable chance of success. The

court also held that in a relatively small claim such as this, the cost of mediation would

have been disproportionately high. Halsey was referred to in the decision of the Court of

Appeal in Burchell v. Balland decided in April 2005. In another case, decided in 2005,

TheWethered Estate Limited v. Michael Davis and Others, the court accepted that, just

because there had been mediation, this did not prevent a party from claiming that a

delay in going to mediation was unreasonable. In Earl of Malmesbury v. Strutt & Parker,

decided in March 2008, Justice Jack examined the conduct of parties at mediation as a

relevant factor in making a costs award where the mediation had not resulted in

settlement.

The above cases demonstrate the approach now taken in England by making it clear

that the English courts will not tolerate unreasonable refusal to take part in mediation

IJLBE

7,3

232