MEDIATION

Construction Mediation: The purpose of mediation is to assist the parties in crafting their own solution to a dispute. The goal is a written settlement agreement resolving the issues between the parties. A mediator who is experienced in the construction industry can provide a process that is more effectively and efficiently suited to resolving disputes that arise in construction projects.

Why Mediation Works: Mediation is a structured process, facilitated by a trained mediator, which is designed to help the parties work through an impasse and find the common ground they need to craft a resolution.

The Role of Mediator: A mediator is a neutral party trained in providing a structured mediation process. A good mediator is also a good manager, who works actively with the parties in setting the ground rules, helps them to identify and clarify the issues and facilitates the exchange of information. The mediator helps the parties think creatively about ways of resolving their differences. What a mediator does not do: a mediator does not give legal or financial advice, and a mediator does not make decisions for the parties.

Benefits of Mediation:

• Controllable– The parties retain control over the resolution of their dispute.
• Realistic – The parties know their circumstances and capabilities better than anyone. Mediation allows the parties to craft solutions that accommodate the parties’ abilities and constraints in reaching a solution.
• Comprehensive – Most disputes involve more than legal issues. For example, parties with an ongoing relationship can address how they will conduct their relationship in the future. A mediated settlement agreement can take a broad range of issues into account. Litigation and arbitration focus on resolving the immediate dispute; they are not designed to take the same range of factors into account.
• Flexible – The process is flexible in several ways. The participants can take the time to discuss proposed solutions with their attorneys, accountants, and/or managers who would be charged with implementing the proposed solution.
• Fair – A mediated solution is one that the parties have agreed they can live with. By contrast, litigation and arbitration can be a “winner takes all” environment.
• Voluntary – Either party can terminate participation at any time.
• Confidential – The mediation process is confidential and that often assists the parties to work through their differences.

What Happens if Mediation does not work? Sometimes the parties are unable to work through an impasse. If mediation does not work, the parties still have the option to proceed to arbitration or litigation, depending on the circumstances. 



Mediation Resources:



When is the Best Time to Mediate a Complex Construction Dipsute? 

   by John D. Onnembro, Jr., Under Construction: The Newsletter of the ABA Forum on the Construction Industry, Vol. 13, No. 3, November 2011

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