The Importance of Process Design to a Successful Mediation - Chapter 18 - AAA Handbook on Construction Arbitration and ADR - 2nd Edition
Paul M. Lurie is the senior member of the Construction Law Group at Chicago’s Schiff Hardin LLP. He serves on the AAA’s National Construction Dispute Resolution Committee and is a Fellow of the American College of Construction Lawyers. Mr. Lurie earned a B.A. and J.D. from the University of Michigan.
Construction parties who seek out the informality of mediation often overlook the importance of appropriate procedures to the success of mediation. Indeed, many users of the process give little thought to the design of the process until they appear at the first session. However, it is well before that time that the parties should be discussing and reaching agreement on such process issues as the mediator to be selected, the individuals whose attendance will be required, party representation, information exchange, use of experts, and scheduling, to mention only a few.
The history of the disputes should affect the mediation procedures that are required. Developing the correct mediation procedures for the particular circumstances will significantly influence the likelihood of success of the process. Good mediators are good process designers. Good process design begins with a thorough understanding by the mediator of the factual disagreements, the competing evidence supporting the varying positions, the group dynamics of organizational stakeholders, risk profiles and psychological factors affecting changing positions. All mediations begin with a failed negotiation—an impasse. The mediation process must overcome that impasse and pave the way toward a settlement. A successful mediation process requires a confidentially conducted investigation into the causes of the impasse and the development of a mediation plan to overcome those factors. Often the investigation incorrectly consists solely of exchange of mediation "briefs" that are carefully prepared by the lawyers and that seldom provide much information about the true reasons for the impasse.