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Accordingly, however a party may have been brought into a mediation - whether his
attendance is entirely self-motivated, directed by a court or due to an anxiety to avoid
possible adverse costs consequences - the dispute resolution process itself remains
wholly consensual. The mediator will do his best to facilitate a negotiated settlement
agreement. But it is entirely up to the parties whether they settle the whole or part of
the dispute or whether they withdraw and so bring the mediation to an end.
It is the desirability of such a voluntary and consensual form of ADR
that has led the
focus of this Final Report to be on mediation in preference to other forms of ADR. Of
course, mediators are generally free to employ (with the consent of the parties) such
other consensual ADR techniques (such as obtaining an early neutral evaluation of the
case, or getting the parties to commission a neutral expert's report on certain key facts,
etc) as may be appropriate. Such techniques preserve the parties' unqualified right to
decide whether or not to reach settlement. Reference to "mediation" here is not
intended to exclude such consensual techniques. The Working Party does not,
however, recommend adopting any binding, adjudicatory forms of ADR for
annexation by the court.
Notes
Adjudicatory versus consensual forms of ADR were discussed in the Interim Report at §§ 625-627.
Subject to what is said below concerning any possible statutory scheme for binding or provisionally
binding adjudication in construction cases.
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