Mediation, as a tool for dispute resolution, is uniquely suited to the special circumstances of construction projects. But mediation is no panacea. The structure of the mediation process, the character and qualifications of the mediator, and the strategies employed by mediating parties—all these and more can have a profound effect on the success (or failure) of construction mediation. This article briefly summarizes practices that may improve the chances that mediation can resolve a construction dispute, quickly, cheaply and fairly. The intended readership for the article is both the counsel who participate as advocates in construction disputes, and their constituent clients.
I. FORMS OF MEDIATION
Forms of mediation vary widely, but (in broad terms) two main types have developed. The focus of this article is on “facilitative” mediation—a process where the parties engage in negotiations with the assistance of a mediator. The mediator may comment on and question the parties regarding the strengths and weaknesses of their claims and defenses, and may suggest forms of compromise that could be adopted by the parties. But the mediator does not, per se, provide an opinion on the likelihood of success of each party. That form of “evaluative” mediation, though non-binding (absent mutual consent of the parties) often involves more formal attempts to persuade the mediator of the merits of each party’s position, and thus may resemble more of the adversarial process (arbitration, litigation). Facilitative mediation typically embodies, as a central feature, control of the process (and the outcome) by the parties themselves.