More Musings on Why I Mediate

Whew!  I’m back.  And yes, I know it’s been a while (it has been a busy year, both personally and professionally).  Hopefully, this will be the first of at least a few more consistent posts here at Construction Law Musings.  Now, on with the post:

Over the last few weeks, I’ve had a surge in mediation, both in my capacity as a mediator and as counsel for construction industry clients.  These recent events have reaffirmed what I have always believed to be true, namely that no construction case is impossible to settle and avoid the cost and expense of litigation.  I was also reminded of why I became a certified mediator and of the satisfaction that I get from helping individuals and construction companies find a business solution and closure.

I firmly believe that individuals and companies (my recent mediations have involved both business-to-business and business-to-homeowner disputes) can, and should, work toward a solution to their construction dispute that does not involve a judge or an arbitrator that has no real involvement or “skin” in the game determining their fate.  Why do I believe this?  I believe this because I have been a construction attorney for a long time and have seen the results of litigation, arbitration, and mediation and each has its place.  However, it has been my experience that a mediated solution tends to create more satisfaction and leads to less financial and psychic costs.

Further, mediation allows the parties to come up with a way for both sides to “win” in a creative way.  A judge or arbitrator can and will only determine which side wins and how much.  It is a “zero-sum” type of decision.  One side wins, the other loses.  That is no fault of the judge or arbitrator, he or she is simply doing their job.  My job as a mediator, or construction counselor, in a mediation is to assist either the parties (in a neutral fashion) or my client, to reach a creative and, hopefully, satisfactory solution.  Where a judge has two choices, a mediator can help the parties be more creative.  Whether it is payment over time or an exchange of goods or services with or without the payment of money, or any of several other creative settlement terms that I have been a part of, mediation has more often than not, led to a resolution.

My recent experiences were “case in point.”  In each of the recent forays into mediation, the parties came into the process with heels dug in and a seeming lack of desire to resolve the matter.  In each of these instances, the parties left with a settlement agreement in hand. In my role as a construction mediator, I enjoyed exploring the issues with the parties in a non-confrontational and confidential manner that, in each case, revealed that the matter hinged on factors that could not be explored in court (such as personality conflicts, or items that would not pass the evidentiary burdens of a courtroom).  By the end of the time allotted for the mediation, the parties were able to see that risk existed on both sides of the “v” and that the costs, coupled with the risks, were not worth the time, money, and lost productivity from their lives to go forward with more “formal” judicial resolution of their claims.

In sum, I highly recommend that you explore mediation as an avenue to resolve any construction dispute and I am happy to assist however I can.

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