MEDIATION OF CONSTRUCTION CASES – WHAT WORKS AND WHAT DOESN’T

1. INTRODUCTION
2. PRE-MEDIATION ISSUES
1. When to Mediate?
2. Preparation for Mediation
3. Managing Client Expectations
3. OPENING STATEMENTS
1. Who Should You Address?
2. What Should You Say?
3. Your Client: To Speak or Not To Speak
4. Visual Aids
5. Money Demands or Offers
4. PRIVATE CAUCUSES
1. The Importance of the Client=s Role in the Process
2. Who Should be Present?
3. Insurance Carrier Issues
4. Strength and Weakness Analysis - Managing Client Expectations II
5. Don't Pull Punches
6. Show and Tell - Do I Play?
7. Using the Guidance of the Mediator - Do I or Don=t I?
8. Multi-Party Cases
5. FINAL CAUCUSES B CLOSING THE DEAL
1. Client Preparation
2. Settlement Agreements
CONCLUSION

Abstract

Nearly all construction cases, whether in the litigation or arbitration forum, will be mediated. Although mediation continues to be a successful vehicle to resolve disputes, the numerous, varied, and complex issues usually involved in construction cases in particular call for more forethought by counsel in order to provide the best possible environment for success. While there is no Abible@ on either the mediator=s or the advocate=s style in conducting a construction mediation, and in fact wide variations in opinions may exist on the subject, the following ideas are compiled from the significant experiences of the authors in this area to provide food for thought for construction counsel.

The potential issues and how counsel chooses to handle those issues in a construction mediation are varied and endless. It is the authors= hope the foregoing will increase construction counsel=s ability to prepare and conduct a construction mediation with an effort toward maximizing the chances of resolution at mediation.

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