Mediation

Overview: Services include acting as a third party neutral mediator, as described below, who is retained jointly by all the parties. The mediator can assist two or more parties in structuring the mediation process. This includes developing a negotiation framework, facilitating appropriate information exchanges, preparing for and conducting individual and the joint mediation sessions. A Dispute Resolution Agreement (DRA) is prepared by the neutral, agreed to and entered into at the outset by all the participants. The DRA will cover such items as the confidentiality and rules of the process, a definitive schedule for activities and agreed to compensation with a not to exceed budget. The typical mediation requires two days or less in joint meetings. The mediation can be completed within a 30 to 90 day time frame, from initiation to completion, when there is a deadline to be met and where there is full but and cooperation of all participants.

Description: Mediation is not new to the construction industry, and is becoming more widely used on projects. Many of the standard industry form agreements, now require that the parties agree to start with mediation before they undertake the next step, whether that step be binding arbitration or litigation. In New Jersey, for example, as in many other states, there is a court mandated mediation program, which requires mediation for many cases within a short time after civil pleadings are filed.

As with other collaborative processes, mediation is well suited for multi-party agreements. Mediation is a private, confidential, and non-binding method of dispute resolution, involving a neutral third party who is trained to assist the parties in finding a mutually acceptable settlement to their dispute. By using mediation, the parties remain in complete control of the resolution of their dispute, can fashion a settlement that satisfies their individual interests, and provides for potential creative “win-win” and innovative outcomes.

The mediator’s main role is to actively assist the parties in moving toward their achieving their interests and fostering settlements that work. The mediator serves to schedule and “coach” negotiations, acts as a catalyst for open dialogue, helps develop proposals between the parties, and serves as an assessor – not a judge – of the positions taken by the parties during the course of the negotiations.

Here are a few of the major benefits resulting from the use of mediation and other collaborative processes:

• The Parties’ control the outcome. One benefit of mediation is that the parties remain in control of the resolution. Unlike litigation or arbitration, in mediation parties don’t relinquish control of the decision to a third party, who must be extensively educated. Rather, they seek assistance from a skilled neutral.
• Pressure relief. A good mediator can help in dispelling negative emotions which are often the propellant for litigation. This is often done by allowing “venting” by the parties in a controlled environment at the outset of the mediation process thus releasing some steam and giving the parties the opportunity to be heard.
• No expensive learning curve. A mediator experienced in construction and the law can provide assistance, without all the anguish involved in completing the discovery process. A knowledgeable mediator can facilitate a settlement without the need of an extensive education. He can also provide confidential insights, as to the nature of each party’s individual case strengths and weaknesses.
• Savings in time and money. Instead of taking years to complete a law suit, the entire mediation process can be over in weeks. The mediation itself is often no more than a day or two. The cost of the mediation process is also a fraction of the cost of litigation. This is true even taking into account that most litigation ultimately settles before trial.
• Preserving relationships. The mediation process also allows for creativity in coming up with differing solutions to effectuate a settlement. Interest based principles of negotiation can help expand the pie for all the participants. In this way, mediation allows the parties an opportunity to preserve their relationships, as opposed to the damage caused from litigation.
• Confidentiality. The mediation process can remain completely confidential as any settlement agreement might be and is also subject to certain additional protections by laws that govern the mediation process.

Sample Mediation Procedures from CPR