Large construction projects often produce disputes that match the physical and financial scale of the project. The dispute is often made more complex if the project spans an ocean or an international border. Nevertheless, persons experienced in mediating these disputes can offer several useful guidelines for a successful mediation.
- Work with the mediator before the mediation begins: The mediator and the parties and their attorneys should meet before the mediation begins to discuss important procedural issues such as production of evidence, disclosure of insurance coverage and the exchange of relevant information. The purpose of such meetings is to build a bridge of understanding and trust among all of the parties.
- Ensure that key decision makers are involved and present: The mediator and the parties must identify the important decision makers and ensure that they are involved in the mediation, that they are engaged and that they are present during the mediation.
- Establish a timeline: The mediator should oversee the process of setting a timetable for mediation sessions. A complex mediation will most likely involve numerous hearings and meetings to find grounds for an agreement.
- Define expectations of confidentiality: Most large construction disputes involve important information and data that participants do not want to disclose. The mediator should meet with the parties, or with groups of parties, to define the limits on disclosure of confidential information.
- Encourage sessions involving only experts: Occasionally, bringing the technical experts together as a group without the principals present can encourage a free and frank discussion of technical issues that can lead to agreements on factual issues.
- Focus on the neutrality of the mediator: To eliminate or mitigate any concern about the mediator’s prejudice or capitulation.
- Use independent neutrals—or a panel of neutral experts—to resolve a technical or engineering issue without giving the appearance of bias or prejudice on the part of the mediator.
- Use standing panels of neutrals to resolve issues early in the process: Establish standing panels of neutrals to resolve small issues before they become large issues. Such panels may also assist the parties in keeping the mediation out of the media.
Solid legal advice from a mediation and arbitration attorney
Attorneys versed in the mediation and arbitration processes can be very helpful in accomplishing any of these steps. Their knowledge and expertise may make a tremendous difference to your case.