Alternative Dispute Resolution - Mediation
Lay Down the Swords and Mediate your Construction Dispute
Eugene J. Heady
February 1, 2013
The mediator looked at the opposing lawyers and reminded them of the adage “he who sues my client is my friend.” What? Heresy you say? Not so fast. Civility leading up to and during mediation will go a long way in helping to contain the conflict and resolve the dispute. While lawyers can and should vigorously represent and advance their clients’ interests, mediating parties must understand that courtesy, candor, and cooperation on the part of their respective lawyers will help contain the conflict and help resolve the dispute more quickly and efficiently than if the lawyers are at odds with each other.
Contain the conflict, don’t inflame it.
Receipt of a claim on a project should not signal that it is time to draw and engage swords. Construction claims are typically asserted before a project is completed and may involve multiple parties. More often than not, you will find yourself in a situation where you have to continue to work together with the claimant in order to complete the project. If you can’t resolve the dispute through negotiation, then mediation would be a logical next step and may, in fact, be required by your contract before arbitration or litigation may be commenced. Keep in mind that the assertion of a claim is simply one step along the way in resolving a dispute. Ultimately, the dispute will be resolved whether by a negotiated or mediated agreement, by an arbitrator, by a judge, or by a jury of your peers. It is prudent to quickly identify how best to contain the conflict, resolve the dispute cost-effectively, and minimize its impact on the project, on your business and on your personal life.
What is mediation?
Mediation is a form of dispute resolution that is an alternative to litigation. It is a private, voluntary, and non-binding process in which a neutral person, the mediator, helps the parties to reach a negotiated settlement of their dispute. Mediation allows the parties, and not the judge or jury, to control and determine the outcome of the parties’ dispute. In many jurisdictions, judges are permitted to refer cases to mediation during the course of litigation. Many construction industry form contracts contain alternative dispute resolution provisions that require mediation. For example, the 2007 AIA form contract documents require mediation of disputes as a condition precedent to initiating litigation or arbitration. Of course, a mediation provision can be inserted into any construction contract, if the contracting parties agree. Also, the contracting parties can always agree to mediate any given dispute even if their contract is silent regarding mediation.
Why is civility so important, particularly when mediating a dispute?
Civility in the dispute resolution process involves claiming and caring for your own needs and positions without degrading your opponent’s needs and positions in the process. Most people who have been embroiled in contentious and complex construction litigation have learned that the optimum resolution of most construction disputes is usually not achieved by the sheer exercise of brute force, but rather by moral persuasion. Unfortunately, the heroic efforts of two highly trained opposing litigators, armed with their quivers of litigation tactics and advancing with their finely-honed swords, can sometimes overshadow efforts toward peacemaking and problem-solving. Lawyers who put away their quivers, lay down their swords, and approach mediation as an opportunity to solve a complex problem, rather than as an opportunity for conquest over one’s enemy, will be much more effective in helping their respective clients to resolve the dispute. Of course, the mediating parties must also lay down their swords and focus on how they can best solve the problems and resolve the dispute that brought them to mediation in the first place.
Incivility does nothing more than delay the ultimate resolution of the dispute and run up the costs of litigation. When vigorously representing and advancing their client’s interests, the client’s interests are best served when the lawyer avoids reflecting any ill will he or she may have for opposing counsel and treats opposing counsel, opposing parties and all witnesses in a professional and courteous manner. The Texas Lawyer’s Creed reflects the lawyer’s ethical obligation to conduct himself or herself with civility. The Creed states, “A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.” As the mediator’s statement at the beginning of this article suggests, the lawyer should treat opposing counsel as one would treat a friend. The Creed commits the lawyer to educate his or her clients, the public, and other lawyers regarding the spirit and letter of the Creed. The Creed also commits the lawyer to advise the client regarding the availability of alternative methods of resolving and settling disputes including the availability of mediation.
Claims and disputes in the construction industry are commonplace and are often technically and legally complex. Unless you successfully avoid or resolve project disputes as they arise, you may find yourself embroiled in litigation and headed to court. With few exceptions, mediation is almost always a great alternative to resolving a complex construction project dispute, whether before or after litigation is commenced. The degree to which the parties and their respective lawyers conduct themselves with civility may very well determine whether the parties obtain a quick and inexpensive resolution of their dispute or whether the parties get stuck in a prolonged and expensive legal battle.
SOURCE: www.lexology.com