MEDIATING CONSTRUCTION DISPUTES: What Works and What Doesn’t - Dispute Resolution Journal - Vol. 58, No. 2
Richard P. Flake is a shareholder of Cokinos, Bosien & Young, in Houston. A former general counsel of Spaw-Glass Construction, Mr. Flake is an active mediator and arbitrator of construction, commercial and employment disputes. Mr. Flake is also a municipal judge for the City of Friendswood, Texas. He is admitted to practice before the U.S. Supreme Court.
Susan G. Perin has a full-time arbitration and mediation practice in Houston. She has 20 years’ experience as a business litigator with an emphasis on construction cases. She was one of the founding members of the Construction Law Section of the State Bar of Texas. She has taught mediation to hundreds of attorneys and for the past six years she has been an adjunct professor in mediation at the University of Houston Law Center.
Both authors serve on the roster of neutrals of the American Arbitration Association and both have been frequent speakers on ADR topics.
Originally from Dispute Resolution Journal
Two seasoned construction lawyer-mediators share their insights on mediation advocacy so that attorneys can achieve better results in mediation. Mediation, the authors acknowledge, is a fluid process “whose outcome is never certain.” What is certain, however, is that an advocate who knows “what works and what doesn’t” in mediation, enhances the potential for a successful settlement.
Nearly all construction cases, whether in the litigation or arbitration forum, will be mediated. This can be attributed to the many contracts that require a good faith effort to mediate prior to the use of arbitration, and the many courts that have found court-referred mediation to be an effective tool in managing their dockets. Because construction cases often involve numerous complex issues, attorneys who act as mediation advocates need to adequately focus on these issues in order to provide the best possible environment for success in mediation. However, there is no one “bible” stating the rules of advocacy in a construction mediation, and there are different opinions on the subject. This article contains suggestions based on our experiences as construction mediators which we hope will enhance the mediation process for counsel and their clients.
There are a number of important pre-mediation issues that can have a significant impact on the client’s case; for example, when to mediate, preparing for the mediation, managing the client’s expectations, and preparing the client for the mediation session. These issues, which are discussed below, require the full attention of counsel.