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.

Pre-Mediation Issues

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.