More and more, mediation is serving as the first and primary recourse to resolving commercial disputes, States are making it mandatory. Many standard contracts and customized ones require mediation be conducted prior to filing a lawsuit or initiating an arbitration.
There is a good reason for this. Mediation saves time and money. It also is fairer than litigation in most cases because the decision makers and the mediator understand our industry and are not easily dazzled by experts or confused by complicated facts and arguments. Juries and even judges do not understand the nuances of construction. Often the best chance for equity lies in the hands of the parties as a mediator guides them to resolving their differences.
There are no sure things, no slam-dunks. At least that has been my experience over 15 years of mediating and 30+ years in the industry. Disputes arise and both sides always think they will win. I watch people sometimes walk into a mandatory or court ordered mediation intransigent. That is how convinced they are. In almost every case, I help parties learn the strengths and weaknesses not only of their own case but of the opposing side's. Once they understand this, parties who come to the mediation wanting to settle, will most likely accomplish that goal.
Parties also come to realize the costs involved in pursuing their cases, costs that may even exceed what they hope to win. They also learn, especially in the courts, the process can take years. But more than even money or time, for parties that have a personal stake, and in many instances this is the case, become aware of the emotional toll litigation will take on them.
Even if a mediation does not result in a final resolution or, as in many cases, only some of the claims will be resolved, the benefits of mediation far outweigh the small amount of time and money invested. Sometimes it is the first time lawyers get to see the parties and are able to judge their demeanor. Always, and that is always, parties learn more about their opponent's cases than they would have otherwise. This may be the only time the attorneys can observe the interaction of the parties and how they conduct themselves with each other and the information they share can be invaluable.
My approach to mediation may differ from what you have seen. First of all, I bring over 30 years of construction and real estate development experience to the table. I am also a Professional Engineer and have been arbitrating and mediating construction cases for over 15 years.
Some mediators lean to one type or the other. I will employ any tool to make a mediation successful, but what I most prefer is facilitative because that is how I see the process. The process must always belong to the parties. The mediator only helps them find a way to resolution. I will help parties see where their weakness lies but I will never put a value on a dispute. I have used the mediator's solution where you come up with a number and if both sides accept it you have a deal. I never did baseball mediation where you pick one of the two best offers that each party makes. I don't want to be a judge and I think that flies in the face of the spirit of mediation.
I have a good record with mediation and am always thanked for my services. That is partly because of the hard work I put in and also because of my ethics. I take the time to really understand both sides. I also make sure that the parties understand that they control the process and can terminate at any time. Finally, when I think it is appropriate, I give the parties an opportunity to speak and be heard in both joint and private sessions. I have found that respecting the parties and listening to them goes a long way toward bring about conciliation. Some mediators go right to the money. If you want that, don't choose me.