Originally posted 2013-10-16 16:11:03. Republished by Blog Post Promoter
Yesterday I attended a great CLE/CME (Continuing Mediator Education) seminar entitled “Brave New World for Mediation: Skills for Forging the Future.” Aside from the skills learned from the mediators at the seminar, one thing stuck with me from the keynote speech.
In the course of his discussion of how far mediation (and ADR in general) has come since the early 80’s when arbitration was new and “mini-trials” were all the rage, the speaker made an interesting observation that struck home. To paraphrase, he stated that mediators thrive on conflict. Think about that for a second. Instead of the more typical reaction to conflict (at least in others’ lives): avoidance, we instead almost beg people (in my case contractors, subcontractors and suppliers) to bring their conflict to us.
I hadn’t really considered this aspect of my at least partial transition from construction counselor and litigator to construction mediator. I have always known that I have the particular mental makeup that allows me to find trials to be a fun way to pass the time. I had not, however, considered how much more conflict I was bringing into my life when I became a mediator. Now I’d be bringing in both sides of the conflict, not just the one I would be representing in litigation.
Most people (including us lawyers) are at least partial sales people. We want people to hire us and generally this means avoid conflict with those that we work with. A construction attorney or mediator, can help you with that. By contacting a mediator even when there is no pending litigation or other court filing or trial on the horizon, you may be able to smooth things over and reach a resolution (read end to) your construction related claim (read conflict). You can also use a mediator to consult on better conflict resolution techniques. We mediators do this every day, and get better at resolution of conflict with this practice.
I have written before at Musings that my training and experience as a mediator has helped me and my clients find creative ways out of the pain (both psychic and monetary) of these types of conflicts. The more I see mediation from both the advocate’s perspective and the mediators, the more I see this form of ADR as a great way to get rid of conflict and move on with the next construction project.
To sum it all up: Have Conflict? Dump it on a construction mediator, we’re asking for it!
Check out my other “musings” on ADR for more thoughts on mediation and other alternate methods of dispute resolution.
As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.