55 LAWYER MONTHLY ADR AWARDS 2024 Mediation Lawyer of the Year CANADA Zineb Kouidri Associate - BTK Lawyers What is the value of mediation as a method for resolving construction disputes? The Construction field is made up of different business spheres, it evolves layers of engineers, architects, general contractors, workers, suppliers, and experts of all kinds. All these people must work together to complete a common construction project. Personalities are often strong in this field and responsibilities are shared and intertwined on more than one scale. These factors of intertwining responsibilities favor the creation of disputes between the different actors in this field, and this, at each stage of the realization of the project. However, the judicial delays necessary to treat disputes in the field of construction can be counted in years and this is not a particularity of Canada but rather an international plague. These delays paralyze a project when it is at the stage of realization and can increase in time when the litigation appears after the project is completed. In such cases, the damages and costs incurred can be aggravated and the interests of the various parties to the dispute can be significantly affected. Because of its immediate access and its open communication methods, mediation would be a well thought-out solution that should be taken more into consideration in the construction field. It will be quick and efficient when the parties invited to the negotiation table have a real will to reach an amicable solution. Mediation is a strictly confidential process, which makes it a means of settlement without putting pressure on the various parties in a construction dispute. Indeed, the word of the parties is thus liberated since nothing in their statement can be used against them in a subsequent judicial procedure. The parties remain masters of the final decision which will be made by them together. In what circumstances may the use of mediation be preferable to other forms of ADR or simple litigation? In construction, especially for large projects, internal standing committees for dispute resolution can be set up to manage any conflicts that arise during project execution. These committees can be very quick and efficient in managing disputes. However, the decision remains imposed by the committee even if it is not final. Indeed, the parties can always have the right to take action before the common law courts if the decision does not suit them, which brings us back to square one for certain cases. Unlike arbitration or litigation, mediation is a process that focuses on respecting the respective interests of the parties rather than directly applying the applicable law or taking the form of a consensual tribunal. In mediation, the solution does not reflect the mediator’s view or interpretation of the law or the dispute but results from the sole will of the parties. The final decision will be by mutual agreement of the parties and is not made or imposed by the mediator. The parties will in some way judge themselves. Finally, mediation is a low-cost process compared to other alternative dispute resolution methods in the construction field. It preserves and strengthens long-term business relationships by restoring dialogue between the different actors in the dispute. Q Q
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