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As anyone that reads this construction law blog on any sort of regular basis knows, I am a big advocate for mediation in most cases (construction or otherwise). I took this truly to heart about four years ago when I decided to go through the training and mentorship to become a certified mediator here in Virginia. This training led to many opportunities to act as a mediator in the General District Courts here in Virginia and has recently given me the great privilege of helping parties that were not court referred resolve their disputes.
I’ve discussed this first category of mediations at other times here at Musings, but it is the second category that has opened my eyes lately. The non-court referred mediations are those where the parties actively seek out the assistance of a mediator because they, like me, know that more often than not the control and ability to come to some form of negotiated solution (not to mention short circuiting the litigation process in a way that saves money) is a better way to go than to go through the expensive (though as a construction attorney I acknowledge sometimes necessary) process of litigation.
Often the parties are represented by attorneys which adds a whole new dynamic to the process. The involvement of attorneys is usually a plus because the attorneys already understand the process and can be quite helpful in my quest as a mediator to get the parties to see a solution that may not have occurred to them prior to the mediation. The attorneys understand the potential pitfalls of their litigation cases and are surprisingly candid about the potential risks for their clients found in the litigation or arbitration process. It is these risks that mediation and the use of a mediator can avoid and the lawyers know it. Having good counsel for the parties in mediation is a great asset to me for all of these reasons.
The almost always rewarding and sometimes exhausting process of exploring options and discussing the issues (many of which may not even be financial) with the parties and their attorneys in a confidential setting without rules of evidence, objections and the other trappings of court leaves me a feeling of satisfaction when the parties, at the end of a long day, leave with an agreement in hand that they may not have come to without the process. While neither side leaves with everything that they thought they might get at the end of the process, I generally get the sense that they parties appreciate the ability to have some say in their fate, feel that all of their issues were heard, and are therefore better satisfied with the result.
I learn something new from each party and attorney that I assist in my mediator’s role. Every mediation carries with it a new eye-opening wrinkle of advocacy and creativity. I get to see other sides of the counseling roles of attorneys against whom I have litigated and my respect grows for those attorneys. These lessons in creative thinking and good counsel to clients assist me in both of my roles: mediator and advocate and for that I’m greatly appreciative.
In short (if its not too late for that), I truly enjoy my role as a mediator and my acting as a mediator has only increased my enthusiasm for the process.
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