Construction Mediation Works! (Even When it Doesn’t)

Originally posted 2012-04-02 10:25:32.

The Supreme Court of Virginia Building, adjace...

The Supreme Court of Virginia Building, adjacent to Capitol Square in Richmond, Virginia (Photo credit: Wikipedia)

If you’ve been reading Construction Law Musings lately you know that I’ve been on a bit of a mediation kick.  I’ve recently been certified by the Virginia Supreme 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 mediations.  By successful, I mean those that result in a settlement and an end to the hostilities/litigation.

Of course, some mediations do not result in an agreement.  Sometimes the parties truly work for a full day (or more) in an attempt to reach a settlement with the help of a very capable mediator and simply cannot make that last jump to bridge the gap.  Usually, these “unsuccessful” (and I use quotes around this term for a reason that will be come clear later) mediations end up this way despite (as opposed to because of) the genuine desire of the parties to reach a settlement.

While it would be easy to write off these seemingly unsuccessful days as being a waste of time and money (and therefore discourage the use of mediation in the future), I encourage you not to do so.  I say this because despite the lack of an agreement at the end of the day, much can be gained simply by participating in the mediation process.

For a construction litigator like me, information and proper case evaluation are key.  Participating in the mediation process with a mediator that knows your particular field of practice can give you and your client more of both.  While holed up at a law office or other venue and participating in the give and take of mediation you get to look the other side and their counsel in the eye.  This can give you a read on who you are dealing with (if you haven’t dealt with that counsel before).

You also get some informal discovery into what the other side may think are the strengths and weaknesses of your case (and possibly of their own).  While a mediator will not pass on information that you and your client wish to keep confidential (and this information even where passed remains confidential and not subject to discovery), often times certain information is passed on in hopes of settlement that can give you a read on where the case may go.  As they say, more information is better than less.

Furthermore, you can get information from the mediator.  Particularly where you hire a mediator experienced in your field of practice (in my case construction law), he or she can give you insight into the areas of possible weakness and strength in your case.  Having a third party impart this wisdom long before a judge or jury decides to make its opinion known can be invaluable.

Finally, the process can sometimes lead to a settlement after the fact.  After the parties get a chance to look again at their positions post-mediation they may very well be in a better frame of mind for settlement.

As I’ve stated on many occasions, settlement is often the best business decision in a construction dispute.  Generally, the parties did not anticipate the time and cost of litigation.  This time and money is usually paid to an attorney who will help to resolve the dispute (whether in court or otherwise) and not used to further the business objectives of the construction companies involved.

In short, aside from the clear carrot of settlement being achieved through mediation, the benefits of mediation (regardless of outcome) make it a great option in most, if not all construction cases.  Having seen these many benefits from both an advocate’s and a mediator’s perspective, I’m jumping into the mediation game with both feet as a construction mediator.

Please contact me with any questions about the process or if you would like to have a mediator who knows construction law and truly wishes to assist construction professionals to resolve their disputes.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

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16 Responses to Construction Mediation Works! (Even When it Doesn’t)
  1. carol tilson
    April 3, 2012 | 4:22 PM

    Even if a mediation isn’t 100 percent successful, it’s still important to get everyone to understand what’s going on. Miscommunication is a common problem in legal battles.

  2. Greg St. Ours
    April 25, 2012 | 2:23 PM

    And even if mediation is not 100% successful, the parties have a first-hand perspective of how their cases present and how justice is in the eye of the beholder. Through that third party perspective, the parties may avoid “sticker shock” if a verdict or verdict falls short of expectations.

  3. Christopher G. Hill
    Twitter:
    April 25, 2012 | 2:26 PM

    Thanks to both of you for checking in. Good points both.

    Greg, always good to get a comment from a fellow construction attorney here in VA.
    Christopher G. Hill recently posted..Reminder: Title Search is Key for a Virginia Mechanic’s LienMy Profile

  4. [...] Here’s a short excerpt: As a litigator and counselor I almost (though not quite) always recommend mediation at some point during the process. A majority of the time, the infusion of the mediator’s perspective results in a settlement if not that same day, then later. In those rare cases where mediation has not resulted in a settlement, the process has been worthwhile. [...]

  5. [...] Here’s a short excerpt: As a litigator and counselor I almost (though not quite) always recommend mediation at some point during the process. A majority of the time, the infusion of the mediator’s perspective results in a settlement if not that same day, then later. In those rare cases where mediation has not resulted in a settlement, the process has been worthwhile. [...]

  6. [...] can also lead to one of my favorite dispute resolution techniques:  mediation.  Mediation (even when it does not end in an agreement) gives business people the chance to come up with their own solution to a business problem. With [...]

  7. [...] and stress wise, of mediation on multiple occasions.  I have discussed the value of mediation even when it does not lead to settlement and had numerous Guest Post Friday posts from my good friend and uber-mediator Victoria Pynchon [...]

  8. [...] other) disputes in a creative and business responsible manner.  I also believe that mediation is a worthwhile process even when it does not lead to settlement.  Through this voluntary (as opposed to mandatory as required by some contracts) process, the [...]

  9. [...] disputes in a creative and business responsible manner.  I also believe that mediation is a worthwhile process even when it does not lead to settlement.  Through this voluntary (as opposed to mandatory as required by some contracts) process, the [...]

  10. [...] those of you that read this construction law blog know, I am a big fan of ADR, and in particular mediation as a means of dispute resolution.  I am also a huge proponent of early access to a lawyer that knows a construction contract can [...]

  11. […] with my favorite of the two, mediation.  As regular readers of Construction Law Musings know, I am a big fan of mediation as a method to resolve disputes.  After years of acting as a construction litigator, including […]

  12. […] Mediation on the other hand is a purely voluntary and confidential process where the parties, usually accompanied by counsel, present their cases in some fashion to a third party with no dog in the fight, the mediator. Both sides get to air whatever grievances (monetary or otherwise) that they wish without the constraints of the rules of evidence or other court processes. The mediator may give his or her thoughts regarding the issues in private if requested, but is generally there to facilitate the parties reaching a mutually agreeable settlement of the dispute. The parties have a bit more control than in court, though the mediation may or may not end up with an agreement. […]

  13. […] Mediation on the other hand is a purely voluntary and confidential process where the parties, usually accompanied by counsel, present their cases in some fashion to a third party with no dog in the fight, the mediator.  Both sides get to air whatever grievances (monetary or otherwise) that they wish without the constraints  of the rules of evidence or other court processes.  The mediator may give his or her thoughts regarding the issues in private if requested, but is generally there to facilitate the parties reaching a mutually agreeable settlement of the dispute.  The parties have a bit more control than in court, though the mediation may or may not end up with an agreement. […]

  14. […] the matter, and the right adviser by your side, and the mediation does not result in an agreement, the process is worthwhile.  By going through the process, both sides gain insight into the way that the other is thinking […]

  15. […] of one) causes more issues than involvement of a lawyer would have.  Furthermore, attorneys can assist in the early resolution of construction related disputes without the need for […]

  16. […] the matter, and the right adviser by your side, and the mediation does not result in an agreement, the process is worthwhile. By going through the process, both sides gain insight into the way that the other is thinking . […]

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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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