Most people are not familiar with the mediation process. They become interested when they find themselves facing mediation after it is suggested that they should consider mediation to help them settle a dispute between themselves and another party or if mediation is mandated through contract language or if a court has mandated mediation prior to an actual court proceeding. You may find that you have no choice but to participate in a mediation to solve an unresolved disputed item. As a result, it is to your advantage to fully understand the mediation process to enhance your opportunity to have the mediation end in a more favorable outcome for you. My explanation of the mediation process will relate only to construction related mediation.
The mediation process begins with the assumption that both parties are willing to discuss the issues and that they are willing to compromise to some extent. The parties recognize that they were not able to resolve the disputed items by themselves and that a trained neutral mediator will be able to help the parties reach a settlement. By exploring the strengths and weaknesses of each party’s position acting as an intermediary, the mediator provides an objective point of view and helps to defuse the parties’ emotions and guide the parties towards objectively looking at all of the consequences of the various options that are available in the decision making process. The parties both look at the mediator as a neutral and extend personal and confidential information to the mediator in private discussions that are commonly known as caucuses. At appropriate times during the mediation process, the parties may authorize the mediator to transmit settlement offers to the other party with the ultimate goal of reaching a final Settlement Agreement (PDF) on the disputed items.
The mediator’s role is not to decide who is right or who is wrong, but to facilitate discussions between the parties to help them reach a settlement that is fair and equitable to both parties. The final settlement agreement is a legal document and can be enforced in a court of law. It is not unusual to see multiple mediations conducted at different times on larger and more complex construction projects. If a major dispute develops during the beginning stages of a construction project, a mediation, binding mediation or med-arb can be conducted in an expeditious manner that may allow the project to continue with very little loss of time and money to either party. Each settlement agreement is a separate contract and is enforceable in a court of law.
If you are scheduled for a mediation session, you might look into changing to a binding mediation or med-arb process which is explained elsewhere on this website. They are fast becoming the preferred dispute resolution processes in construction related disputes for many reasons which are also explained elsewhere on this website. If both parties agree to binding mediation or med-arb, the parties can sign a Binding Mediation Addendum (PDF) or a Med-Arb Addendum (PDF) prior to commencing the dispute resolution process. Although it is widely recognized that a good mediator usually only needs to have a general knowledge of the topic that is being mediated, I have found that in construction related mediations, it is a definite benefit to the mediation process to have a mediator who has a complete knowledge of the construction field and it is even more helpful to have a mediator who has had hands-on experience as a designer, builder and remodeler. In most mediations, both parties are involved in the selection of the mediator unless there is a designated provider of service or mediator specified in the contract or appointed by a judge
I have found that in many construction mediations it is a definite advantage for the mediator to make a jobsite visit prior to the mediation session. It is especially important if it is a binding mediation or med-arb where the mediator may become the person who is responsible for making a final and binding decision on any unresolved matters at the end of the mediation. Sometimes, the dispute resolution session is actually held at the residence involved in the dispute.
Attorneys may be involved in the mediation process but it is not required. In binding mediation or the med-arb process, you may involve an attorney but again it is not required. Many people feel that they are not good presenters of their position and feel that an attorney will help strengthen their presentation. Unlike arbitration or civil litigation, you will have the opportunity to speak for yourself and to personally express your opinions and your personal feelings. It is a standard procedure for each party to bring professional witnesses or other specialists to a mediation to help strengthen their position or to add an expertise that they are not capable of presenting themselves. Remember, in mediation, you are not trying to convince the mediator but rather convince the other party, with the help and guidance of the mediator, of the merits of your position. The mediator is a neutral person and will not be making any decisions unless it is binding mediation or med-arb.
Be sure to be properly prepared for the mediation. Bring all documents such as contracts, change orders, engineering plans, specifications, manufacturer’s installation instructions, floor plans, construction plans, cancelled checks, credit card receipts or other financial documents if there is any chance that they will be referred to during the mediation. Photographs can also be very useful in certain circumstances.
Keep in mind that if the parties do not come to an agreement on all of the items involved, there will only be a settlement on the resolved items, and you will need to proceed to the next specified dispute resolution process such as arbitration or you may proceed to civil litigation, to handle the unresolved items, as your contract specifies. It is not unusual to see a mediation come to a settlement just to avoid the additional costs and time commitments needed to proceed on with the dispute resolution process. Other mediation and arbitration information is available elsewhere on this website.
Have a positive attitude when you begin the mediation. Most people feel that both parties have reached an unchangeable position and the mediation has no chance of success. Usually they are wrong, as a good mediator should be able to change those fixed attitudes and will guide the mediation process towards an amicable settlement. Remember, construction mediation has over a 90% success ratio in settling disputes prior to the case going to trial.