Construction Mediation is Exhausting, but Worth It!

Chess and MediationHere at Construction Law Musings, we have discussed mediation from numerous angles. From a great Guest Post from Vickie Pynchon (@vpynchon) on Ways Your Construction Mediation will Fail to my own personal musings on the subject.

All of the thoughts from these posts flooded to mind during one long mediation experience recently. The parties had already tried a court sponsored mediation that lasted maybe an hour and, a few months later, were ready to charge into the void of trial (a result that would have lead to an interesting case with some cool construction issues, I might add), but the lawyers decided to take one more shot with a private mediator. As is true in almost all commercial and construction disputes, the parties each had strong feelings and reasonable arguments from a legal perspective. In my latest case (as in most cases where a good mediator is used) a deal got struck.

Also, and as always happens, I learned something during the process and left it even more committed to the possibility of voluntary (as opposed to contract or court mandated) mediation at the proper point in time between parties who are poised and ready to go to battle in the courtroom. I say this as a litigator by trade and training that truly enjoys the courtroom battle. However, I need to remind myself that “Counselor at Law” often follows “Attorney” after my name and I take that second designation seriously.

I saw the reasons that mediation works to resolve even the thorniest of construction disputes, from the ability of businessmen to make business decisions to the possibility of a creative solution unavailable in a pure litigation context. I also saw how a mediation might not work, from the desire to just shut it down to a mediator that did not take the time and twist the arms. Mere shuttle diplomacy never seems to do anything to move the parties toward resolution any more than a settlement conference without a mediator would have.

I also saw that mediation can move the ball forward even after a day of hard-fought negotiation results in everyone going home. Even when parties are at the end of their ropes and all hope seems lost, sometimes a break can lead to a breakthrough. When all seems lost and a break is the difference between “no” and “maybe,” “maybe” is always better. This last needs to be remembered late in the day when the parties are in from out of town or seemingly at their final offers and ready to dig in their heels. This is true even though most mediators with whom I have worked seem to cling to the thought that once the parties leave the office or conference room the deal is lost. Sometimes (though far from always), the fresh perspective of a good nights sleep can relieve tension and lead to a bit more rope.

The takeaway? In even the most difficult and contentious of construction disputes, once business people get into a room with the mindset to fight for a compromise, a deal generally results. In most cases the parties’ bottom lines minutes before the mediation starts turn out to be a lot more fluid than even they thought by the end of the day. The ability to vent as well as be a part of a process (mediation) as opposed to a passenger on a careening train (litigation) almost always results in a more satisfactory resolution. The parties can leave the mediation exhausted, psychically bruised, but firm in the knowledge that they worked hard to solve a problem and that they came to an imperfect but palatable resolution instead of a decision by a third-party sitting in judgment.

In short, mediation works and, in my opinion, should always be a tool in a litigator’s tool belt.

As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.

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28 Responses to Construction Mediation is Exhausting, but Worth It!
  1. […] This post was mentioned on Twitter by Christopher Hill. Christopher Hill said: New Musings: Construction Mediation is Exhausting, but Worth It! http://bit.ly/cH0PDK […]

  2. Ron White
    March 29, 2010 | 11:41 AM

    Chris,
    Court-ordered mediation of construction disputes rarely works. Unless the parties participate in the mediation voluntarily, the essence of the process is lost. Mediation is based on the assumption that parties, who are so inclined, will find a way to resolve their dispute. Parties ordered to mediation usually do not have the commitment to weather a stormy day of negotiations.
    Parties should not begin mediation until they have conducted sufficient discovery to analyze the risk of going to trial. As discovery is so very expensive, ideally, parties will stipulate early on to an efficient discovery process that will enable them to conduct meaningful negotiations as early as possible. It would be even better if the parties put ADR provisions in their contracts that provide for the meaningful exchange of information and mediation procedures that must be completed as a condition precedent to litigation. I recognize this could be construed as a mandatory process, but it is a process of the parties own design and reflects the parties’ intention to resolve conflict in the most efficient way possible, and that is what mediation is all about.

  3. Christopher G. Hill
    Twitter:
    March 29, 2010 | 11:49 AM

    Great comment Ron, thanks. I am less skeptical of contractually negotiated procedures. However, I find that many times an owner or GC will use a ” take it or leave it” approach that sometimes creates a less negotiated agreement. It is in these instances where I don’t see mandatory mediation, particularly where the mediation has to “get out of the way” to get to what the allegedly wronged party feels is necessary, i. e. litigation.
    .-= Christopher G. Hill´s last blog post ..Contractor Side Deals Can Waive Rights =-.

  4. Bobby Darnell
    March 29, 2010 | 12:42 PM

    Chris,

    I am finally having a week that allows for a bit of ‘exhaling’ and get caught up on some of my favorite blogs, yours always being at the top of that list.

    We just took on a client who offers construction mediation and I forwarded your link to them. Yet another great posting and I am glad I get to ‘brag’ on something you wrote!

    Keep up the great work…

    Bobby

  5. Christopher G. Hill
    Twitter:
    March 29, 2010 | 12:50 PM

    Thanks Bobby. I’m glad you’ve stayed busy and enjoy your comments so am happy for your readership.

  6. uberVU - social comments
    March 29, 2010 | 1:08 PM

    Social comments and analytics for this post…

    This post was mentioned on Twitter by constructionlaw: RT @BlawgTweets: Nu @constructionlaw: Construction Mediation is Exhausting, but Worth It! http://bit.ly/9uZFUa

  7. csstone2138 (csstone)
    March 29, 2010 | 1:55 PM

    Twitter Comment


    Construction Mediation is Exhausting, but Worth It! | Construction … [link to post]

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  8. Timothy R. Hughes
    Twitter:
    March 30, 2010 | 3:01 PM

    Having just settled a case yesterday at a client sit down (no mediator, but very much like a mediation), I am really sticking to my original point. I spent four months virtually begging to get the parties together.

    Tens of thousands of dollars later, multiple hired experts and reports, more complexity of resolution due to clients being on notice of property defects, the parties sit down ad resolve their case. A pre-litigation mediation clause would have short-circuited a ton of wasted time, energy, effort and money, produced a very similar result, and the other side would probably have been able to sell a little better deal for themselves to boot.

    I agree with Ron that like fine wine, the aging of information and analytical exchange needs to ferment appropriately for these methods to work; however, good lawyers who have their clients’ trust can extrapolate on partial information and save a lot of time and effort in most (but not all) circumstances.
    .-= Timothy R. Hughes´s last blog post ..Contract Terms Govern in Virginia … Except Non-Competes =-.

  9. Christopher G. Hill
    Twitter:
    March 30, 2010 | 3:05 PM

    Glad to hear you got it settled Tim! Good lawyers always help. Unfortunately in many cases the cases we have are the first that our clients may have that go to such resolution procedures.

    The only way that a pre-litigation mediation clause can work, in my mind, is if all of the parties buy into the necessity of such a clause up front. If not, they’ll just go through the motions because they won’t know enough to move forward. While I always advise “working it out” before suing, this does not and cannot happen in all cases.
    .-= Christopher G. Hill´s last blog post ..Contractor Side Deals Can Waive Rights =-.

  10. Scott Wolfe
    Twitter:
    April 5, 2010 | 4:44 PM

    If the parties come to the table with an open mind, mediation really can be an asset to the dispute. I just went through a marathon mediation myself. Exhausting, but worth it.
    .-= Scott Wolfe´s last blog post ..CPSC Stiff Recommendations Positive Development for Homeowner Claims =-.

  11. […] Chris Hill of Construction Law Musing’s published something that addresses a possible next step: Construction Mediation is Exhausting, but Worth It! […]

  12. Christopher G. Hill
    Twitter:
    April 5, 2010 | 7:51 PM

    Thanks for the comments Scott

  13. Mike @ mediation
    April 7, 2010 | 11:43 PM

    I think the financial crisis has fueled a mini boom for mediation services across the world as more and more people dispute over money.

  14. […] please subscribe to the RSS feed for updates relating to construction law. I have discussed my experiences with mediation and other thoughts on this alternative dispute resolution (ADR) process on several occasions here […]

  15. […] have stated on many occasions here at Musings that mediation is a great solution in many, if not most, construction cases. As a construction lawyer, there are very few cases in which I do not at least […]

  16. […] have stated on many occasions here at Musings that mediation is a great solution in many, if not most, construction cases. As a construction lawyer, there are very few cases in which I do not at least […]

  17. Mediation Musings From the Trenches
    February 13, 2012 | 5:19 PM

    […] representing one side in numerous ultimately successful mediations, I knew that pushing through the somewhat exhausting process was the best way to go. This knowledge helped me to let the parties speak, and occasionally vent, […]

  18. […] representing one side in numerous ultimately successful mediations, I knew that pushing through the somewhat exhausting process was the best way to go. This knowledge helped me to let the parties speak, and occasionally vent, […]

  19. […] have been a big advocate for mediation as a method of resolving construction disputes for quite a while here at Construction Law Musings. As an advocate, I have participated in […]

  20. Putting My Mediation Where My Mouth Is
    March 19, 2012 | 11:40 PM

    […] have been a big advocate for mediation as a method of resolving construction disputes for quite a while here at Construction Law Musings. As an advocate, I have participated in […]

  21. […] Court and have had a few mediations lately. I’ve discussed the mediation process from the perspective of the advocate and that of the mediator. Of course, most, if not all, of these musings have discussed successful […]

  22. […] Construction Mediation is Exhausting, but Worth It! […]

  23. […] get paid have been known to do from time to time. The parties entered into a non-binding mediation (as is often a great idea). At the mediation, Franklin offered $100,000 in exchange for a release and discharge on the […]

  24. […] language is found in many construction contracts and often (wrongly in my opinion) is deemed mandatory in those contracts. Mediation is essentially defined as […]

  25. […] numerous occasions here at Construction Law Musings. I have also discussed my thoughts on ADR and mandatory mediation. A recent case out of the Eastern District of Virginia mixes these two ideas quite […]

  26. Construction Contracts, Mediation and Venue
    December 18, 2013 | 12:55 PM

    […] numerous occasions here at Construction Law Musings. I have also discussed my thoughts on ADR and mandatory mediation. A recent case out of the Eastern District of Virginia mixes these two ideas quite […]

  27. […] In short, if your construction contract has such a clause, and despite my reservations about “mandatory mediation,” you need to at least go through the process before moving forward with your construction […]

  28. […] have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia. A […]

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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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