Technical Mediation: A New Tool for Resolving Complex Construction Disputes - Chapter 60 - AAA Handbook on Mediation - 2nd Edition

Author(s):

Robert S. Peckar

Page Count:

10 pages

Media Description:

PDF from "AAA Handbook on Mediation - 2nd Edition"

Published:

September, 2010

Jurisdictions:

United States

Practice Areas:

Construction,

Dispute Resolution & Litigation,

ADR,

International Litigation,

Mediation,

Mediators

Author Detail:

Robert S. Peckar is a founding partner of Peckar & Abramson, P.C.,—a law firm representing major construction contractors world-wide—and 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.

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Description:

Originally from: AAA Handbook on Mediation - 2nd Edition

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MED-MAL MEDIATION OFFERS PROMISE BUT SYSTEMIC OBSTACLES REMAIN

I. Introduction

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...

Table of Contents:

I. Introduction

II. Case Studies

A. The Seaside Condominium Dispute

B. The University Dormitory Dispute

III. Commentary

IV. Conclusion