As Hurricane Ian is bearing down on Florida the economy is sputtering, it is easy to lose track of things that construction professionals (among others) can control. One of those things is how to resolve your construction dispute. When initial, and hopefully business-oriented, discussions break down and the construction lawyers get involved, often more formal means are required. One “formal” possibility that should always be considered and almost always attempted is the mediation of your dispute.
I know, I pound this particular gavel often. Why? Because not only are litigation and arbitration expensive and time-draining, you are putting your fate in the hands of a judge or arbitrator to decide. Let’s face it, most contractors (and solo construction lawyers for that matter) want as much control over their businesses and projects as possible. Mediation is the only third-party dispute resolution process that allows the parties to decide their own mutual fate. This is one of the primary reasons I almost always recommend that my clients try mediation before or after filing their lawsuit or arbitration demand.
Does mediation always result in settlement? Not always. However, even where the mediator is a good one and the mediation goes for at least a day and the parties just can’t get to the finish line, there is much to be gained from the process:
- The process will allow you to get a read on the mindset of the other parties to the case. While nothing said in mediation can be used later in court or arbitration, the give and take can provide valuable insight.
- The process lets you get to know your counsel and vice versa. The downtime between caucus sessions has always been valuable to me because it allows for time to discuss other matters.
- The process gives you insight into your case. Often a good mediator will point out the holes and strengths that he or she sees in the parties’ respective cases. These discussions can help determine strategy moving forward.
I am sure that those who have been through mediation can add to the above-stated list of helpful aspects of mediation even where no settlement is reached.
As the title of this post states, mediation is not always worth the time. Where the case doesn’t involve enough money to pay a mediator for a day to try and settle, the parties should negotiate on their own. Also, where all counsel have spoken with their clients and the positions are so entrenched that only a decision by a judge or arbitrator will end the fight. With that said, I have had many a case where mediation was tried even where the above scenario looked to be in play, and was surprised at the parties’ eventual settlement.
In sum, mediation should always be in the arsenal of a good construction attorney. It is always worth discussing as a possibility even if there are a small minority of cases in which it may not be cost-effective or where the mediation does not result in a final resolution.
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