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I have stated on many occasions here at Musings that mediation is a great solution in many, if not most, construction cases. As a construction lawyer, there are very few cases in which I do not at least broach the subject of mediation with my client and likely with opposing counsel. When wearing my advocate/counselor at law hat, I find that mediation is a great way to allow construction professionals to see a possible business solution to their legal problem.
A neutral third party set of eyes on the problem can in many instances reveal what in many cases their attorney has been saying all along: namely that litigation in the construction world is often a zero sum game with collection issues even in the event of total victory or destruction of the other side in court. Add that to the fact that, at least here in the central Virginia area, construction contractors and subcontractors (when the problem is posed the correct way) would rather deal with the problem and retain the relationship than go to court and risk destroying a long term relationship with a valued source of money or good work, and mediation is almost a no-brainer.
Because of my experience with mediation from the advocate's side of the table, I decided to look into becoming a mediator myself. As many of my loyal readers (thank you) have heard, I am currently going through the Virginia Supreme Court mediation certification process. After a bit of a hiatus, I have gotten into the co-mediation portion of the certification requirements. This last step toward certification in certain of Virginia's courts involves my teaming with an experienced mediator for the purpose of both actively participating and learning the trade. As always this has been enlightening.
Even more than the scenarios I went through during training, these real world experiences have opened my eyes to the fact that in many instances the problem that we construction attorneys see between the parties are not really those that are driving the dispute. Where we see contractual clauses to be argued in Court, the parties see real world, sometimes emotion filled, issues that may have nothing to do with the "legal problem."
Admittedly, at times I have to really think before I speak as a mediator. I have to tell myself that I can't jump across the table and let the parties know how irrelevant the past relationship is to the present dispute. I have to sit back and be a guide and let the parties take the conversation where they want it to go. Finding the line between gentle reminders of the stakes and actively moving the parties to the outcome that I believe to be the "right" one is difficult for me as a fledgling mediator.
However, by accomplishing the facilitative role of a mediator, the parties can almost always get to the heart of the matter. After each co-mediation or exercise in this training, I look back and realize that most people don't think like lawyers. The "heart of the matter" may not, and likely often isn't, the words on a contract (though I cannot emphasize enough the need for a good construction contract). Often the flashpoint for litigation is found in an interpersonal encounter having little or nothing to do with the contracts that we lawyers love to discuss. Once this issue (or issues) see the light of day, the rest moves relatively quickly.
Seeing the way that parties can generally come to an acceptable (if far from ideal) solution to a problem without the "help" of a court that can only decide who wins is both refreshing and enlightening. Having the experience as a mediator and the insight gained in facilitating the parties' agreed resolution can only help me properly counsel my clients towards a business like resolution to disputes.
In summation, after my first of these co-mediations I am even more convinced that mediation should at least be an option in almost every construction (or other civil litigation) case.
As always, I welcome and encourage your comments below, please share your thoughts. Also, please subscribe to keep up with the latest Construction Law Musings.
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