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