Recipe for Success in Construction Mediation

John P. Madden

I. Introduction

My first mediation training in 1990 left me with the feeling that the mediation process seemed vague and remote. I wondered if there were any practical application to be seen, at least on a wide-scale basis, in the construction industry, my area of legal practice.

Three years later, I was invited for the first time to serve as a mediator and to meet with two parties for a $25 million dispute. The representative of the arbitral institution that invited me described the two parties and their legal advisors as ready for a pitched battle whenever everyone was in the same room, and advised that I would probably only last about fifteen minutes before I or someone else left the room refusing to proceed. I set about meeting with the parties to explore whether they knew enough about their dispute to be ready for mediation. After four hours, it was apparent that an audit needed to be conducted before either party could feel a sense of certainty with regard to the costs expended on the construction project. I recommended that they conduct such an audit, and if they so chose to, to contact me again in the future. I truly never expected to hear from them again.

Six months to a year later, I received a telephone call from the chambers of a judge of the U.S. federal court in New Orleans.  The legal advisors with whom I met previously as well as two other parties involved in the same project were now inquiring as to my availability for “global mediation.” Apparently, the federal judge who was to preside over what was to be a two-month trial was disinclined to tie up his courtroom for such a lengthy, complicated case, and requested that the parties resolve their dispute another way.