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In England and Wales, the issue of mediator immunity has not been considered by the courts or via legislation. Mediator immunity is constructed by analogy to that given to judges, but the role of the judiciary is different to that of mediators, who do not determine cases and, it is argued, do not require protection from litigation because the parties are responsible for the final settlement outcome. In Australia and the USA, mediators are usually provided with immunity in mandatory, 'court-annexed' programmes, although this varies from an absolute to a qualified level that is constrained by bad faith or dishonesty. In the English jurisdiction, mediation is court-connected and parties are dissuaded from accessing the courts through the risk of costs penalties or automatic referral schemes. Therefore, the time is opportune for a review of many issues involved in mediation development, including immunity. This paper considers the reasoning for extending immunity to mediators, before concluding that the subject should not be determined through legal action until after a comprehensive review of mediation developments and after a consideration of mediator standards and regulation of practice. [ABSTRACT FROM AUTHOR]

Litigants are now required to consider mediation and can be penalized under the Civil Procedure Rules if they unreasonably refuse to use an ADR procedure. As litigants are expected to participate in mediation, there are mounting concerns, particularly in common law countries that mandate attendance before accessing the courts, that parties are obstructing the process by engaging in 'bad faith'. Some common law countries have used the concept of 'good faith' negotiation to design rules or codes to regulate conduct in mediation. The English and Welsh jurisdiction identifies mediation as a type of negotiation, but has no developed concept of negotiating in 'good faith'. This paper first reviews the case law on good faith negotiation in England and Wales, before considering the concept of 'good faith' in mediation and assessing whether or how the conduct of parties in mediation could be controlled. The concept of good faith in mediation may not provide the answer because of definitional difficulties and a review of Australia, Hong Kong and the USA indicates that many rules or procedural codes are confined to a 'minimum level' of participation. Furthermore, court control of conduct is limited by the rules of without prejudice in negotiation and confidentiality rules in mediation, which limits court review unless there is substantial impropriety such as blackmail or duress. This paper proposes that the issue of the conduct of parties in mediation must be given serious consideration, particularly in view of judicial pressures in some quarters for courts to be given increased powers to direct litigants to mediate. Mandating mediation may lead to more incidences of bad faith or to party involvement without serious engagement. An argument is made to draw on the already developed principles of unreasonable behaviour in litigation in order to define the expectations of reasonable conduct in mediation. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Continuing a survey of contractors' perceptions about alternative dispute resolution (ADR) this paper seeks to report an investigation of the level of involvement of legal advisors to the construction industry in the dispute resolution process and the perceptions that legal professionals have about the use of ADR in construction disputes. The research findings are that contractors are likely to involve lawyers in the dispute resolution procedure, particularly when disputes concern a legal issue, when the parties to the dispute are entrenched in their argument, or when the other party insists on using legal professional assistance. In these defined circumstances, legal advisors will be influential in determining the potential use of ADR. The paper concludes that lawyers are unlikely to recommend ADR for most disputes between contractors, particularly if the dispute resolution process is perceived to involve the use of delay by main contractors, if the parties are fixed in their arguments or if they are exhibiting adversarial behaviour in their approach to the dispute. In these circumstances lawyers and their clients prefer the force of the formal systems over conciliatory ADR procedures. [ABSTRACT FROM AUTHOR]

Attitudes to alternative dispute resolution (ADR) among contractors and subcontractors/specialists in the UK construction industry are analysed on the basis of an extensive survey. Positive attitudes contrasted ADR with litigation and arbitration in terms of cost, delay and damage to working relationships through confrontation. The study also examined negative perceptions of ADR which may reduce its appeal and explain its limited use to date. These include a fear that lawyers may 'colonize' ADR and that its non-binding quality may prove a deficiency. It is concluded that these perceptions will be influential in determining the extent to which ADR is used in construction disputes. [ABSTRACT FROM AUTHOR]