The AGC Contracts & Construction Law page recently added significant new content. Among these updates is a new dispute resolution and mitigation subpage featuring a recent paper by Christoper Brasco of Watt, Tieder LLP entitled Mediation Uncompromised. The paper emphasizes the importance of selecting the right mediator and understanding negotiation paradigms and styles. This article summarizes the mediation best practices outlined in the paper.
Mediator orientations run the spectrum of being evaluative (directive) or facilitative. Evaluative mediators offer assessments and predictions, potentially influencing the outcome, while facilitative mediators guide parties to make their own evaluations. A party’s sophistication and autonomy factor into their choice between an evaluative or facilitative mediator. A mediator’s style in defining problems ranges from narrow to broad. Defining a problem narrowly is a law-centric approach that seeks to divide a fixed value among the parties. This style is labeled distributive bargaining or “competitive.” This contrasts with an integrative (cooperative) bargaining style that seeks mutually beneficial outcomes beyond immediate positions by focusing on parties’ interests. Choosing a mediator who is both facilitative and broad is advantageous to reach an uncompromised resolution through mediation.
Some techniques to maximize mediation include: defining a successful mediation; overcoming perception biases; neutralizing inflated case assessments; harnessing the power of listening; addressing the need for judgment; and guarding against reactive devaluation. Reaching a party-driven settlement through mediation is beneficial to the “Parade of Horribles” litigation can offer, including: (1) the uncertainty of the result; (2) legal and expert costs; (3) lost opportunity costs associated with time; and (4) reputation costs and a possible adverse outcome.
To access AGC’s collection of Continuing Legal Education papers on current construction risks, presented by industry experts at AGC’s Surety Bonding and Construction Risk Management Conference, visit AGC’s risk management website.
Comments or questions about this article can be directed to Brian Perlberg, Executive Director and Senior Counsel, ConsensusDocs Coalition, bperlberg@consensusdocs.org.