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Virtually every construction project starts with a spirit of cooperation between the owner, the contractor and the design team with a mutual shared promise to work together to bring the project to successful completion. Promises and agreements at a project kick-off meeting to resolve disputes amicably may be made with the best intentions but rarely occur.
Disputes arise on virtually every construction project and mediation is commonly employed to help resolve them. However, some mediation techniques can actually drive the parties farther apart and be counter-productive. As a result, it is important to consider various dispute resolution options and the pros and cons of various mediation techniques, including the use of technical experts, in order to decide which techniques are most likely to provide for effective dispute resolution. Since the views or opinions of a mediator are not binding on any party, mediation is only successful if the mediator can convince the parties that resolving the dispute is in each of their best interests. It is often said that in a successful mediation, neither party is completely satisfied with the outcome but each can accept the result. While each mediator has a unique style, most mediators generally employ one of two styles: facilitative or evaluative.
Under the facilitative approach, a mediator does not provide opinions or evaluation of a position. Instead, during joint sessions with the parties, the mediator asks questions designed to flush out the parties’ respective positions with the goal that this process will help the parties reach a consensus on the issues.
Under the evaluative approach, joint sessions with the parties are limited and the mediator conducts multiple separate sessions with each party during which he states his views on the strengths and weaknesses of a position, including in many cases his views on the likely result if the case were tried by a judge or jury. The views and opinions of a mediator have no binding effect but are simply tools to resolve the dispute. However, since a mediator using this approach opines on specific legal issues and the merits of each party’s claims, he or she should have legal expertise as well as significant knowledge. Further, since the goal of mediation is settlement, it is important to remember that in expressing his views the mediator has an incentive to convince each party that its position has significant weaknesses.
Good mediators will alter their approach given the flow of a particular mediation. A mediator that generally utilizes a facilitative approach might feel at some point that expressing his opinion about a particular issue might aid settlement. However, in choosing a mediator it is wise to consider his general approach and how that might play out in light of the issues and parties. It is also important to keep in mind that the mediator’s goal is to resolve the dispute. Even when a mediator provides an opinion regarding the merits of a case, it may not accurately reflect the likely outcome, but rather where the mediator believes the case may settle.
Regardless of the overall approach or style of the mediator, most mediations begin with some form of a joint session with all of the parties. At this session, each party will typically describe his case. In some circumstances the act of being able to present one’s case or story to the other side goes a long toward getting the parties engaged in the settlement process. Just having the other party hear your views and your frustrations can have a beneficial effect.
At some mediations, the joint session includes a presentation by the experts. In fact, it has become commonplace, particularly in construction defect litigation regarding production or tract housing, for mediations to include expert presentations. However, whether this approach will likely prove beneficial in any particular case requires careful consideration. The trend toward the use of expert presentations or mediations appears to be based on a theory that if the respective experts meet and discuss their views on technical issues they may reach agreement on the issues and this agreement will form the basis for resolution of the case.
This theory is suspect. First, it ignores the fundamental reason or purpose of an expert. An expert is retained to give his subjective opinion on a topic which requires some technical expertise or knowledge and is beyond common knowledge. As a result, different experts can legitimately view almost any issues differently. Further, an expert has been retained and paid to advance the position of a particular side. Therefore, his goal at an expert presentation is to advance that side and to convince the other side that he is right. The expert for the other side obviously has the exact opposite goal. If they were to reach agreement on a particular issue each would need to concede the merit of at least some part of the other side’s position and, they can really only do that if they are given permission by the party that retained them.
In lieu of an expert presentation, an effective technique is to have the opinion of the expert presented through the party’s attorney or through a report prepared by party’s expert and attorney. This approach allows the expert’s opinions to be disclosed and discussed. This allows the opposition to know the views of your expert and the case against them but does not subject your expert to questioning and does not require the cost of preparation for an expert presentation. This approach also limits the role that technical evaluation play in the mediation. As set forth above, experts will likely be able to have legitimate disagreements regarding any technical issue of significance. Therefore, it is unlikely that the experts will reach agreement on opposing technical issues even if they are extensively vetted. The same is true with most technical issues. While it is important to learn of the differing views of the respective experts on the issues that is not determinative of whether mediation will be successful.
Ultimately, a case will settle if each party believes, based on its assessment of its position and the costs of risk of trial, that settlement is the best option.
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