Criteria for the appropriate use of mediation in construction disputes: Judicial statements in the English Technology and Construction Court

Abstract

Purpose

The purpose of this paper is to consider the circumstances in which a refusal to refer a construction dispute to mediation may be judged acceptable in the English Technology and Construction Court (TCC), thus avoiding the imposition of a costs penalty.

Design/methodology/approach

The paper uses traditional doctrinal legal methodology in the evaluation of judicial statements in the TCC on the criteria for determining the appropriate use of mediation and combines this with a socio‐legal approach which examines empirical findings on settlement outcome.

Findings

An analysis of TCC cases indicates a significant steer from the judiciary on when construction cases are deemed appropriate for the process of mediation. Most cases are identified as suitable, particularly if they involve small sums compared to litigation and where there is uncertainty about factual and legal issues. Judges continue to emphasise the ability of skilled mediators to deal with intractable parties and the importance of continuing commercial relationships despite empirical evidence to the contrary. The personal experiences and perceptions of TCC judges continue to drive mediation “appropriateness criteria”. This could work negatively against its true potential if construction parties' actual experience of the mediation process involves less‐experienced mediators or a failure to achieve settlement.

Originality/value

The paper provides a detailed and scholarly analysis of the application of Court of Appeal's decision in Halsey in the TCC with specific reference to built environment cases. It evaluates empirical findings on the effectiveness of construction mediation on settlement outcome with the judicial steer on “appropriateness criteria”. It is of value to legal scholars, legal practitioners and researchers in the built environment.

Citation

Brooker, P. (2009), "Criteria for the appropriate use of mediation in construction disputes: Judicial statements in the English Technology and Construction Court", International Journal of Law in the Built Environment, Vol. 1 No. 1, pp. 82-97. https://doi.org/10.1108/17561450910950269