10 Fundamentals for Mediating the Large, Complex Multi-Party Construction Dispute - Chapter 40 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Michael J. Bayard, a Full-time Construction Mediator and Arbitrator and a former Construction Lawyer, serves on the American Arbitration Association's construction panel. He has also served as a trainer at AAA education programs on construction ADR.
Large, complex construction cases are the “major leagues” of construction ADR. Whether they involve traditional construction claims or construction defect claims, or a combination of the two, these cases are often challenging to mediate. With many participants involved in the dispute, there are daunting communication problems that the mediator must solve. Also, there is always the challenge of identifying one or more logical approaches to settling the case. This is not work for novice mediators. Mediators of large, complex construction cases should be good, even great, at what they do. Getting to that point requires at a minimum, mastery of the fundamentals of mediating and knowledge of advanced techniques. Every mediator of large, complex cases has his or her own list of key fundamentals. I offer my list in this article to help novice mediators and those new to the large complex case to meet the challenges facing them.
1. Make sure all stakeholders in the dispute attend and participate in the mediation
One would not attempt to direct a play without knowing all the characters in the play. Similarly, a good mediator would see no point in proceeding with a complex construction mediation until the mediator knows who all the stakeholders are. Stakeholders are people and entities with an interest in the dispute. Stakeholders in construction disputes typically include the owner or developer, the architect and/or engineer,