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Vol. 2007-01-a January, 2007

Construction Mediation

Mediation is a valuable form of Alternative Dispute Resolution ("ADR"); it is an effective alternative to costly litigation in the state or federal court systems.

Construction Mediation is a highly refined form of mediation, formatted specifically to address the complex business and processes of the construction industry. In this procedure, the mediator selected by the parties, must possess knowledge and experience in construction, in order to understand the nature of claims and defenses, and to assist in the intelligent and just resolution of all claims, acceptable to both parties in a binding settlement.

Fact-based mediation, developed as a departure from conventional mediation techniques, was specifically designed to address the needs of the construction industry. Dispute resolution by fact-based mediation is intended to permit the parties to make informed business decisions, based on an independent and impartial fact evaluation. The Mediator must be prepared to make an impartial, confidential assessment of the probable outcome and possible future costs should the parties elect to go to arbitration or litigation in the courts.

It is this kind of information that should enable and encourage the parties to make prudent and unemotional business decisions in support of their acceptance of the mediation process, and to participate in it sincerely, to assure its ultimate success in resolving their conflicts.

More than 20 years ago, a Connecticut based firm stated: " As in any mediation the parties and their attorneys must be absolutely convinced of the mediator's impartiality and complete lack of bias. This is particularly crucial in "fact-based mediation" wherein the mediator will be expressing a point of view about the weaknesses of a party's case when caucusing with that party. This devil's advocate role is its essence."

Studies have proven that approximately 90 percent of construction fact-based mediation have been satisfactorily resolved.

The procedure is relatively simple. After the parties have agreed upon their mutual selection of a Mediator, and his compensation and costs, shared equally by both parties, a hearing date is set. The Mediator may agree to the submission of pre-hearing briefs from both sides, to permit
an understanding of the nature of the controversy. Upon opening the joint mediation hearing, the Mediator makes introductory remarks, explains the hearing procedure and ground rules and hears any preliminary questions. Then, the Claimant and Respondent may each make a presentation, outlining the pertinent facts of their case and claims, including any controlling law.

Customarily, the Claimant or aggrieved party makes the opening presentation. The Attorney or representative, may make a brief statement of the facts, the law applicable, and sum up the total monetary demand, along with the reasons why the claimant party's position should prevail and the Respondent should not. Next, the Respondent's representative may address the Mediator similarly.

After both sides have opened their cases, the Mediator will next meet privately with each party and their counsel, in a series of private caucuses, to focus and narrow the issues, to encourage consideration of a compromise leading to a possible, acceptable resolution and settlement to which both parties will agree.

At no time, may the Mediator disclose the confidences of either party gained during individual, private caucuses. The Mediator may privately point out the flaws or weaknesses in the claims or assertions of either party, in an attempt to encourage adjustment of that party's position, leading to ultimate resolution and a written consent, signed by all concerned.

Age is a very high price to pay for maturity.

Tom Stoppard

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.

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