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Preparing For Mediation In The Construction Industry: Best Practices

May 23

Choosing a mediator, agreeing on mediation logistics, and submitting pre-mediation statements are all part of the process of preparing for mediation.

Mediation may be used to settle many construction problems. This series of essays focuses on some of the most effective mediation strategies. The series covers the full mediation process, including pre-mediation preparation, mediation itself, and mediation conclusion (if successful, through settlement agreement).

Because author Steven C. Bennett produced a long post on the construction mediation process, divided it into three parts, each of which summarizes elements of Bennett's original work. Preparing for mediation is the topic of this first article. The article's second section discusses how to conduct the mediation. The third piece outlines the mediation process' conclusion.

Mediation Procedures

Mediation takes many different forms, but there have emerged two primary sorts. This article focuses on "facilitative" mediation, which is a kind of mediation in which the parties negotiate with the help of a mediator. The mediator may make observations and ask questions about the parties' claims and defenses, as well as offer possible compromises. The mediator, on the other hand, does not express a judgment on each party's chances of victory.

Though non-binding (without mutual permission of the parties), that kind of "evaluative" mediation often entails more formal efforts to convince the mediator of the merits of each party's viewpoint, and therefore may resemble a more adversarial procedure (arbitration, litigation). Control of the process (and its result) by the parties is usually a major aspect of facilitative mediation.

Mediation Planning

This section covers the time before the parties appoint a mediator, decide on mediation logistics, and submit pre-mediation statements.

Discussions with the other parties and their attorneys might aid in determining whether mediation is the best option. Even if the mediation procedure has been set in stone by a previous contract or court order, informal changes are always conceivable. Will the mediation be just facilitative, or will a mediator's assessment (or proposed settlement) be included? How will the parties organize the filing of mediation statements, information exchange, and actual mediation meetings? If a "cookie cutter" style of mediation does not work for you, or if you can conceive of a better, more likely to succeed approach, don't accept it. Working with the mediator (and the adversary) to understand the demands of the case and design a method that matches your specific circumstances is the next step after selecting a mediator.

Select An Appropriate Mediator

The mediator you choose may make a big difference in how the mediation goes. Parties seek for impartiality, fairness, intellect, judgment, listening skills, inventiveness, and forcefulness in a mediator in general. Everything else is "gravy": construction industry experience, construction legal expertise, construction mediation experience, and experience litigating and mediating the sort of conflict presented in the case at hand.

Finding the "ideal" mediator for a case is quite difficult (there are too many variables in a construction dispute to think that one person will have the complete combination of skills to manage all such variables). A strong personality is required of a good mediator in order to command the respect of the parties, but humility, empathy, and patience are also necessary. The choice of a mediator, like almost everything else in mediation, involves a compromise.

Ascertain that the mediator candidate has all pertinent information on the parties and people participating in the mediation. The parties must put their faith in the mediator, and mediator independence is a critical component of that trust. Full disclosure ensures that conflicts are avoided and the mediation goes well, with no "surprise" discoveries of potentially disqualifying relationships between a mediator and individual parties or their counsel.

The parties' selection of a mediator kicks off the mediation process. The parties may and should use the mediator as a resource to assist organize the mediation process and think through choices that might help (or damage) the process from then on.

Furthermore, the parties are usually permitted to participate in ex parte conversations with the mediator after they have selected a mediator (if not before). Parties and counsel may provide confidential information to the mediator in order for the mediator to better understand the players and personalities involved in the dispute, as well as any issues that may have arisen in prior communications between the parties and other non-legal factors that may affect the mediation's outcome. Such private conversations may aid the mediator in developing methods to overcome hurdles to settlement.

Make A Good Pre-Mediation Statement

There are many uses for pre-mediation declarations. Parties and their counsel should think about which of these goals is most significant in their situation. One of the main goals is to inform the mediator on the facts and claims in dispute so that he or she may successfully aid talks.

A second, and frequently more essential, goal is to tell opponents about the strengths (and weaknesses) of your positions (of their positions). At the very least, you want to make sure that opposing parties understand your stance, even if they disagree. The goal is to sow seeds of doubt, implying that the result (in the absence of a settlement) would not be as rosy as the other side expect cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval cheval

Pre-mediation statements may also be used to assist establish the framework of discussions. A pre-mediation statement may make the mediator's task (helping each party see the conflict in a new light) much simpler by offering a thorough analysis of the claims and defenses at hand, as well as the damages that may be awarded.

The mediator should be informed of any impediments or possibilities for good discussion that may result from facts that are not technically connected to the legal issue.