Innovation in Mediation, Technical Mediation: A New Tool for Resolving Complex Construction Disputes - Dispute Resolution Journal - Vol. 60, No. 2
A founding partner of Peckar & Abramson, P.C., a law firm representing major construction contractors world-wide, Robert S. Peckar has long been an advocate of using ADR to resolve construction disputes. He previously served on the Dispute Avoidance and Resolution Task Force of the AAA’s National Construction Dispute Resolution Committee, and as chairman of the Private Dispute Resolution Committee of the American College of Construction Lawyers.
Originally from Dispute Resolution Journal
Classic mediation of construction disputes centers on the role of lawyers who serve as mediators and advocates. A new technique, called Technical Mediation,” centers instead on the role of engineers, architects and other technical experts who solve underlying scientific and technical issues as a precursor to resolving financial and legal issues in classic mediation.
Virtually all construction disputes are ultimately about money. While a case may be described as a “differing site condition” case, or a “design defect” case, or by reference to some other specie of construction dispute, in the end the dispute is usually about one or more parties wanting money from the other.
That being the case you might expect financial considerations to be the greatest motivator to settle a construction dispute. In order to motivate the parties to make appropriate compromises to achieve a settlement, mediators are taught to remind each party, at some point during the mediation, of the probable costs of a trial and the risk that each party might not be pleased with the outcome of a trial.
As a construction lawyer who spends considerable time in mediation as an advocate, I have found that, no matter how great the financial considerations, construction disputes with serious engineering and other technical issues at their core (as contrasted with disputes limited to financial issues) are the most difficult to settle. In these disputes construction professionals (for example engineers or architects) hold tightly to the belief that their position is the only correct one as a matter of pure engineering or science. For example, an engineer may believe that unless a particular strength of concrete is calculated in accordance with a universally accepted scientific formula, the building will collapse. To my mind, such beliefs are largely the result of the view that there is only one right answer to a scientific (and by extension an engineering) problem. So all other answers must be wrong.
When strongly held opinions are based on a construction professional’s calculations, or on scientific measurements or engineering principles, it is hard to get the parties to even agree to sit at the mediation table to have a conversation, let alone consider the concept of compromise. When the parties do agree to engage in traditional mediation, the mediator’s efforts to cajole the parties’ experts into moving towards compromise based on the costs inherent in litigation or even arbitration are perceived as an insult, and this can lead to further intransigence.