Question 1

Where does mediation sit alongside adjudication, conciliation and arbitration?

Accepted Answer

They do different jobs, and construction is unusual in having all of them available. STATUTORY ADJUDICATION under the Construction Contracts Act 2013 gives a fast, binding-in-the-interim decision on payment disputes - designed to keep cash moving on live projects, with the decision enforceable but open to being finally determined later. CONCILIATION appears in many standard forms and produces a recommendation that becomes binding if not rejected within a set period. ARBITRATION produces a final award. MEDIATION produces nothing at all unless the parties agree - which sounds like a weakness and is often the strength: it is the only one of the four where the outcome can be anything the parties design, including terms no adjudicator or arbitrator has jurisdiction to award. In practice they combine: an adjudication resolves the immediate cash-flow issue, and mediation resolves the whole account.

Question 2

Can a dispute be mediated while the project is still running?

Accepted Answer

Yes, and mid-project is frequently the best moment. The parties still need each other - the contractor needs to be paid and to finish, the employer needs the building completed, the professional team needs the job to conclude well - and that mutual dependence is exactly the leverage that produces agreement. A mid-project mediation can deal with the immediate issue and re-set the arrangements that generated it: an agreed process for variations, an agreed valuation approach for the disputed elements, a revised programme with agreed extension of time, an escrow or payment mechanism that gives both sides comfort. Compare that to the alternative, which is a project limping to practical completion while both sides build a claim file, and then a final account dispute that takes years and consumes the margin on both sides.

Question 3

What about defects disputes, where the technical evidence is everything?

Accepted Answer

Mediation handles them well precisely BECAUSE the technical evidence is everything: expert-heavy disputes are ruinously expensive to litigate, since each party funds its own experts, disclosure is enormous, and the trial becomes a battle of reports. In mediation, the technical material can be used rather than performed - the parties can agree a joint inspection, narrow the issues to those actually in dispute, agree a remedial scope, and then argue only about contribution. Very often a defects dispute settles not on liability but on a package: some works done by one party, some money contributed by another, some claims released, a warranty or an agreed defects period. Where structural or fire-safety issues arise, the technical and regulatory dimensions run alongside the firm’s construction practice at constructionlawsolicitor.ie.

Question 4

Who should attend a construction mediation?

Accepted Answer

People with authority to settle, and enough technical knowledge to know what they are settling - and the two are not always the same person, which is why attendance is designed in advance. Typically: a decision-maker from each party with actual authority (not someone who has to ring head office at six o’clock), the person who knows the project facts, the quantity surveyor or claims consultant where the numbers are central, legal advisers where parties want them, and sometimes experts on a limited basis. Insurers matter enormously: where a claim engages professional indemnity or other cover, the insurer’s position may be the real constraint on settlement, and a mediation arranged without that in mind achieves an agreement nobody can fund. That question gets asked at the outset.

Question 5

Our contract has a dispute-resolution clause. Does that affect mediation?

Accepted Answer

It shapes the sequence rather than blocking it. Many construction contracts specify a ladder - notification, negotiation between named representatives, conciliation or adjudication, then arbitration or litigation - and a well-run mediation fits into or alongside that ladder rather than ignoring it. Sometimes the clause itself requires mediation or another form of ADR before proceedings; sometimes the parties simply agree to mediate notwithstanding the clause, which they are free to do. What matters practically is that time-bar provisions and notice requirements in construction contracts are unforgiving, so mediating must never mean missing a contractual deadline: the dates get diarised first and the process is designed around them. Drafting better clauses for the next contract is its own service, on the appointing page.

Construction Dispute Mediation

Where It Fits Among the Machinery

Mid-Project, and the Defects Problem

A Live Project, or a Final Account Going Nowhere?

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Construction Mediation - FAQs