To Mediate or Not To Mediate: That Is The Question - Chapter 12 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Deborah Bovarnick Mastin
Roger J. Peters
Roger J. Peters is an Independent Construction Neutral who serves as a mediator, arbitrator and dispute review board member and was formerly the Executive Vice President, General Counsel and Secretary of Dick Corporation (n/k/a dck worldwide), a national construction firm headquartered in Pittsburgh.
Deborah Bovarnick Mastin is Assistant County Attorney for the Miami Dade County Attorney’s Office.
To mediate or not is a question parties to major construction disputes should ask themselves whenever a dispute arises. Unfortunately, it seems that, with the rise of limited liability companies, project asset-based financing, the shift to engineer, construct and procure (EPC) and design/build contracts, as well as the desire to finish projects and put them on-line as fast as possible, there is a rush toward costly, time- consuming litigation and arbitration.Fortunately, experienced construction participants and lawyers are discussing the role that mediation should play. To use mediation effectively, the case must be appropriate for mediation, and the timing of the mediation needs to be deliberately chosen. Especially in connection with a serious effort to resolve complex, fact-based construction disputes, an early mediation may be more or may be less fruitful than a mediation that occurs later in the claims analysis process. While mediation has been incorporated as one of the first steps in the claims procedures in some standard form construction contracts, parties can strike the provision from the contract. They can also agree to mediate even when the contract is silent as to procedural conditions prerequisite to commencing litigation.
For sound reasons, many federal district and state trial courts mandate mediation of all cases filed in their jurisdiction, whether or not the matter is construction-related, or whether it is simple or complex.