As those of you who read Musings regularly know, I became certified as a mediator by the Virginia Supreme Court last year. I went through this training, and the mentor-ship process (as a “mentee”), because I firmly believe that mediation is a great process by which the parties can resolve their construction (and 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 parties can safely air their disputes and grievances and get to the heart of a matter without the fear that their words will be used against them at a later time.
In the safe haven of mediation, the two sides can, with the help of the mediator, explore creative and business savvy resolutions to a dispute that a court or arbitrator could not reach due to court rules and the fact that a judge or arbitrator can only pick a side and render a judgment. Through mediation the parties can often come to a solution that renders closure and a sense that they had control over the solution and the resolution in a way that litigation cannot.
My experience performing mediations through the Chesterfield County court system has done nothing to change my view. During these mediations, I am consistently amazed at the non-monetary issues that are truly driving these people to court. Looking at the facts and feelings of the parties from a neutral perspective (as opposed to the advocate’s perspective used in other areas of my construction practice) always gives me insight into the psychology and the practical desires of parties to (as a general rule) get to the bottom of a dispute and reach a resolution that is imperfect but one of their own choosing.
It is for these reasons that I have added private construction mediator to my practice a construction attorney, counselor and litigator. I will be expanding my practice to encompass helping parties resolve their disputes. I firmly believe that this will allow me to assist construction professionals (and others) in Virginia to resolve their differences short of a decision in Court. I hope that you will contact me to assist you or your clients reach a negotiated, party driven conclusion to their construction disputes.
What are your thoughts on the mediation process?
As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.