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Construction Industry Council unveils model mediation agreement

Out-Law News | 04 Jul 2019 | 3:46 pm | 1 min. read

The Construction Industry Council (CIC) has published the first edition of a new model mediation agreement and procedure (MMAP) which is designed to help resolve disputes through mediation.

The MMAP (12 page / 128KB PDF) sets out the rules for CIC mediation as well as how the CIC can help select or appoint a mediator.

The Council is setting up a panel of accredited mediators who are part of CIC member organisations, and who must have a minimum of 10 years post-qualification experience in their profession. Parties will not have to choose from the CIC panel, and may pick their mediator from another list.

However, they can also ask the CIC to nominate someone from the panel, and all mediators on the panel will conduct a mediation for a fixed fee of £6,000 if the value of the dispute is under £100,000.

Construction disputes expert Shy Jackson of Pinsent Masons, the law firm behind Out-Law.com, said: "Anything that helps to make mediation easier and more effective is to be welcomed and the CIC is supporting that by providing this mediation service.

"Reading the CIC Model Mediation Agreement and Procedure (MMAP) would be useful for a party with little or no experience of mediation and it provides a check list of matters to consider before proposing mediation," he said. "In particular, the Model is right to highlight the importance of advance preparation and the need for the parties to consider their BATNA (best alternative to a negotiated agreement) in advance and the need to identify a lead negotiator as well as for the business principals to take the lead."

The MMAP sets out four phases to the mediation. Once the CIC has received a mediation request the mediator will discuss how the mediation will progress, and will prepare a mediation procedural agreement. That agreement will describe the background to the dispute, the parties’ respective claims, contentions and interests, listing relevant documentation, setting out the mediation timetable, and recording the mediator’s basis of remuneration.

Parties will then have to prepare case summaries, no less than seven days before the mediation meetings.

Mediators will meet parties separately and then work together to resolve the dispute in round-table sessions followed by joint meetings to eventually reach a conclusion. The whole process is designed to be confidential and structured.

The CIC said its MMAP blended both guidance and procedure and was aimed at empowering the mediator. It emphasises the importance of each party’s ‘lead negotiator’, who has full authority to settle the dispute and to sign the settlement agreement. During all stages of the mediation the mediator is in direct contact with the parties’ lead negotiators, rather than via a representative.

The CIC will only validate a request to nominate a mediator when the lead negotiator is identified.