Mediation in construction disputes: Building bridges

Risk is the fertile soil upon which compromise grows. In order to most effectively mediate a construction matter, the mediator must be able to convince the parties of their risk, both with regard to the outcome at trial and with regard to the costs associated with preparing for, and trying, the case. 

Parties to a construction dispute are unlikely to be swayed by the mediator’s evaluation of risk if the mediator is ignorant of the language of the industry. Even a glimmer of ignorance of terms such as RFI (Request for Information), resource loaded critical path schedule, change order, soil compaction/organic soil issues, shop drawings and submittals, weather delays and the like will cause experienced construction professionals to question the quality of the mediator’s risk assessment and leave them thinking that the mediator’s assessment of their case is flawed (i.e., the mediator would see that we are going to win if she/he just understood construction.) 

Equally important, the mediator should have experience actually trying construction cases. The time and cost associated with trying a construction case can only be credibly evaluated by someone who can demonstrate that they have done it. Moreover, any experienced construction litigator will likely come armed with stories of cases that they should have lost but, in fact, won, and cases that they thought were slam dunks that they, in fact, lost (this assumes that the mediator is sufficiently humble to admit to having lost, a somewhat rare characteristic in litigators). The mediator may also have stories of cases that were won at the trial court level only to have been reversed on appeal. 

In short, there is no substitute for knowledge and experience when it comes to selecting an effective construction mediator. If the parties are going to go to the expense of mediating a dispute, shouldn’t they maximize the likelihood of a successful mediation?