The Construction Lawyer as Mediator

English: New Brunswick Gateway Project under c...

New Brunswick Gateway Project under construction (Photo credit: Wikipedia)

While there has been much discussion about whether a construction attorney’s involvement is actually a detriment to a construction project and its potentially litigious aftermath, I have spent a couple of posts here at Construction Law Musings to discuss the benefits of hiring a construction attorney early in the project, and even later in the event that a dispute arises. Without rehashing those discussions (I encourage you to check them out and weigh in), these two posts (and the other arguments made elsewhere) assume that the construction lawyer’s role was as an advocate and, more importantly, counselor for a particular client with the duty to protect that construction professional’s interest.

There is, however, a third role that I personally embrace on a regular basis: the role as mediator. Aside from the advocate’s role (one that I enjoy and see as necessary for the protection of my clients), an experienced construction attorney can also serve as a neutral mediator to assist the two sides of a construction related dispute reach a resolution short of the time, risk and expense of a trial and a judge’s decision.

I have discussed mediation (and other forms of alternative dispute resolution) extensively, but even I need a reminder of why I am a huge advocate of this dispute resolution method. I received just such a reminder last week when acting as a mediator in the Chesterfield County General District Court. These sessions consistently remind me of a major benefit of mediation: the parties get to vent and share the “non-legal” issues that may drive a dispute. While a mediated agreement almost always comes down to money (at least in construction matters), the key to a settlement often has nothing to do with money. Without the restraints of the rules of evidence and courtroom procedure, the parties can, and should, voice concerns that in a courtroom would likely be deemed irrelevant. This will let the parties control the pace of the discussion and allow them, in my opinion, to feel that their concerns have been considered in a way that the litigation process may not.

Throw in the knowledge of the construction field (and probably litigation) that a construction attorney/mediator brings to the table, and you very well may have a recipe for a resolution without the negatives voiced elsewhere. By use of this subject specific knowledge, those of us who engage in mediation both as counselor and mediator can add a level of assistance for our clients and the clients of others that should lead to more client satisfaction and a smoother process over all. In short, the construction lawyer as mediator can be yet another benefit of the legal professions assistance to the construction industry.

Do you agree? What are your thoughts on the subject? I’d love to hear your comments below.

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11 Responses to The Construction Lawyer as Mediator
  1. Scott Wolfe
    June 12, 2013 | 5:07 PM

    Hi Christopher – I agree with you. ADR and mediation is a huge asset for those in construction, if they embrace, and they should embrace it.
    Scott Wolfe recently posted..Arkansas Mechanics Lien Law: 5 Things to KnowMy Profile

  2. Christopher G. Hill
    June 12, 2013 | 5:27 PM

    Thanks for checking in Scott.
    Christopher G. Hill recently posted..Construction Law, the Cloud and Solo PracticeMy Profile

  3. John Park Williams
    June 12, 2013 | 11:46 PM

    Nice read. I pretty much agree with you. Did you volunteer as a mediator at the Chesterfield GDC? It is a program the court offers? Do you know if they have similar programs in Northern Virginia?
    John Park Williams recently posted..Rights of a Minority Shareholder: The Problem of Trying to Rally Other ShareholdersMy Profile

  4. Christopher G. Hill
    June 13, 2013 | 2:32 PM

    Not sure about NOVA, but the VA Supreme Court runs the mediation certifications and I know training is available up there.
    Christopher G. Hill recently posted..Another Exception to Fraud and Contract Don’t MixMy Profile

  5. Mark Cobb Law Group
    June 13, 2013 | 5:00 PM

    Well stated! I agree with the benefits of mediation, and I suppose that as a lawyer brought in on the front-end of the project, I hope that I can “mediate” differences of opinion before a significant problem erupts. Of course, I always have my client’s best interest in mind, but a cooler head or a fresh perspective can help throughout the entire project. A good construction lawyer brings valuable insight to every project.
    Mark Cobb Law Group recently posted..Comment on Georgia Payment Bond Claim & Litigation Attorneys by GEORGIA CONSTRUCTION, BOND & LIEN LAW BLOG » Some Georgia Construction Law DeadlinesMy Profile

  6. […] The Construction Lawyer as Mediator […]

  7. […] in fact made with pride as one that takes his counseling and risk management roles (not to mention my role as a mediator) very […]

  8. […] (or arbitration/private court where you pay the judge). If one on one negotiation does not work, I recommend mediation as an […]

  9. […] I have become a certified Virginia Supreme Court mediator. During the training and subsequent service as a mediator in various courthouses in Virginia, I began to realize that money may not be the sole reason the […]

  10. […] 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 […]

  11. […] voluntary mediation. I am such a fan that I went through the additional time and effort to become a certified mediator here in Virginia. As opposed to mandatory mediation, when the parties decide that, as business people, they will […]

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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