I. Introduction



Classic mediation of construction disputes centers on the role of

lawyers who serve as mediators and advocates. A less-known 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