Arbitration & Mediation

Six Ways to Insure Your Construction Mediation Fails at Construction Law Musings

By Victoria Pynchon

How smart is Chris Hill at Construction Law Musings to have a guest blogger every Friday?  That's just the kind of collaborative problem-solving you need in your litigation counsel, particularly when you're facing multi-party construction litigation.  This week, Chris was kind enough to ask me to add to the construction law conversation taking place every day at his tremendously useful, entertaining and enlightening blog.  Excerpt from Six Ways to Insure Your Construction Mediation Will Fail below.

1. Leave the Decision-Makers at Home

A mediation – particularly a multi-party construction mediation – is more drama than law; more character than rights; and more emotion than reason. Mediation, like trial, requires the lawyers to restore the texture, dimensionality, morality and personality back into the dispute that we lawyers flatten for the purpose of satisfying the law's requirement that we litigate only the 'relevant' facts necessary to satisfy legal 'forms of action.'

On game day, it's not the mediator, but the parties themselves who must decide who is bluffing and who is not; what allocation of responsibility among the parties feels fair; whose claims of poverty or freedom from liability have the ring of truth; and, which parties have deeper pockets or greater negotiation flexibility than their attorneys have claimed.

Just as you wouldn't want your jury to 'call in' their verdict, you don't want the mediation decision-makers miles away from the mediation table when the cards are being played. Remember that people seek out lawyers only when they feel they have suffered an injustice. Righting that wrong requires more than money or dismissal. It requires the belief that you, the attorney, have gotten your client the very best deal possible in light of the facts finally revealed, the personalities involved and the hard realities faced.

2. Leave Early Because the Other Parties are Acting in Bad Faith

Continue reading here.

Full post as published by Settle It Now Negotiation Blog on June 05, 2009 (boomark / email).