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As those that read this construction blog on a regular basis know, I became a Virginia Supreme Court certified mediator a few years ago. I did so because I believe that mediation as a form of alternate dispute resolution is in most cases a much better alternative to resolve a construction dispute than litigation.
While I still act as counsel to construction companies participating in mediations (and have posted my thoughts on this topic on numerous occasions), working with the General District Courts of Virginia and acting as a mediator for private disputes has given me an interesting perspective on how the flexibility and process of mediation can resolve disputes in a way that formal court litigation or other forms of ADR may not.
After almost 4 years of working with the general district courts here in Virginia and working with private companies and individuals to resolve their disputes, I have come to the conclusion that often the real issue is not the money (though that is the big one) but some other intangible issue, whether an emotional one or some conflict of personality or even what may seem in hindsight to be a minor miscommunication. Because of this fact of life, and the life of a mediator, the ability to “vent” in the confidential setting of a mediation and in a way that no Court with rules of evidence could allow can go a long way toward a resolution of the dispute.
Another insight that I’ve gained that helps me as both a mediator and as counsel to my construction clients is the fact that even the most seasoned of individuals or business people are uncomfortable with the conflict in which they find themselves. Whether its because they are upset because of the time and energy that they see “wasted” during the dispute or are justifiably intimidated by the court process (a process that is foreign to those that don’t deal with it on a daily basis), people generally want to end the pain and move on. As a mediator I can help with that process. As an attorney, I can also help my clients see where the issues are that are holding up the business resolution of their problem and hopefully assist them in making a proper business decision.
In short, not only has being a mediator been rewarding personally, it has been helpful professionally.
I would love to hear any comments on your experiences with mediation so let me know if you have thoughts of your own on this topic.
As always, I welcome your comments. Please subscribe to keep up with this and other Construction Law Musings.
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