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Vol. 2009-09 | September, 2009

Construction Mediation

Mediation of construction-related claims is also known as Fact-Based Mediation, is specifically geared to serve the needs of the construction industry. It is a significant departure from conventional mediation techniques in that it addresses claims arising from specific facts in dispute, along with applicable construction contract documents, contract terms, trade, labor, and industry customs and procedures. All of these aspects are to be accorded consideration concurrently, as part of the overall claims and defenses made or asserted by each of the parties.

Construction is a complex process for the improvement, or alterations to real property (“real estate”), including demolition work where necessary to clear a site. The construction process is subject to all of the principles and doctrines of law; and may be considered under the broad, general classification of Construction Law. Because of the numerous parties and entities involved in any project, construction mediation may become a multi-faceted procedure, where the work and actions of the various parties and their roles in the project work may affect the outcome of any potential settlement. Additionally, the mediator must permit the parties to assess tax considerations, and penalties for violations of building codes and standards, imposed by Federal, State and local authorities, in their presentations and settlement.

Dispute resolution by fact-based Construction Mediation permits the parties to make informed business decisions based on an independent and impartial analysis of the technical facts, procedures and occurrences, governed by the construction document requirements and the applicable governing law of that jurisdiction. For such highly specialized proceedings, an experienced construction professional, with knowledge and experience in the industry, is essential to enable an impartial, confidential assessment of the probable outcome and possible future costs, claims, overruns, backcharges and credits due, should the claimants refuse to settle at mediation, declare an impasse, and proceed to arbitration or litigation. With that assessment and information in hand, the parties are better able to make rational choices that allow the mediation to be successfully concluded.

Favoring this method of mediation, is the encouraging statistic that the settlement rate for Fact-Based Construction Mediation is approximately 90 percent.

No man’s life, liberty, or property is safe while the legislature is in session.
Mark Twain (1866)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.