Introduction

In the past decade, mediation of major construction disputes has gained widespread acceptance. The customary approach utilizes a single mediator. As the number of parties involved in the mediation expands beyond five or six, however, the single mediator system begins to suffer from practical constraints. This article addresses a simple solution: co-mediation.

Practical Constraints on the Single Mediator Approach

In many construction cases, litigation draws into the fray the project owner, general contractor, numerous subcontractors and suppliers, and members of the design team. Let us assume that this results in eight parties actively involved in a hypothetical construction lawsuit.

A construction mediation generally starts off with a joint session, in which each party makes a summary presentation of their position before the assembled decision-makers for all parties. Even if several parties adopt a joint presentation (e.g. one presentation for the general contractor and all subs, or one for the design team as a whole), and even if the presentations are concise, on a moderately large, moderately complex case this exercise will consume most of the morning.

The next step is a round of confidential caucuses. To effectively assist the parties in evaluating their litigation risks a good mediator will undertake some degree of analysis of the factual and legal issues, as well as the practical costs and risks posed by the case. Even when there is a commonality of interest, separate caucuses are usually necessary.

Simple math reveals the practical limitations of the single mediator approach. If you allocate only twenty minutes per party for the initial caucuses in our hypothetical case, you find yourself well into the afternoon by the end of the first round. Since the negotiation process inevitably requires multiple rounds of caucuses this mediation is guaranteed to become an endurance contest.

As is evident in the foregoing description, there is also a great deal of dead-time built-in for everyone, with meters running on counsel and consultants. Patience and focus tend to wear thin as the process grinds on into the evening. While there is something to be said for wearing down opposition to settlement, such a marathon session is wasteful of everyone's time.

Co-mediation

By utilizing two mediators, the efficiency of the caucuses is improved at the same time dead-time between caucus sessions is decreased. Each mediator can spend proportionately more time actively engaged with those parties he or she is responsible for; allowing more efficient analysis of legal, factual and pragmatic issues. This in turn expedites the negotiation efforts of the mediator as he or she moves from one party to the next. With two mediators working in parallel, each with a different subset of parties, the overall time of the settlement negotiation is reduced appreciably.

Also significant, the use of two mediators relieves a pressure often felt in the single mediator approach, where the lone mediator may feel understandably compelled to advance through the caucuses too quickly. In comparison, the co-mediator can allocate his or her time more rationally, according to the needs of the individual parties. The result is that participants feel more "heard"; better understood.

As the mediation progresses, the co-mediators brief one another on their progress with each party, re-assess the likely endpoint of negotiations, and re-evaluate the potential for global or partial settlement(s). In the light of this information, candid discussions are had with each party concerning the continued viability of their stated settlement expectations. Realistic options are explored, and caucusing continues as needed.

This approach eliminates a great deal of the dead time between caucus sessions. This is important because; a) it significantly reduces the overall time the mediation takes, b) it may reduce the direct costs to the parties from having to pay consultants and attorneys during marathon mediations, and c) it reduces the occasion for parties to become (understandably) impatient, more rigid, and slide backward; losing ground gained during caucus.

With co-mediation, chances are improved that settlement negotiations can be concluded within a normal working day. This is important if a comprehensive settlement is to be obtained, and prevents the problem of buyer's or seller's remorse that arises where the mediation continues from day to day. (The problem of losing ground from one day to the next is familiar to many who have been involved in multi-session negotiations. It is a significant source of inefficiency, and can often be eliminated by a co-mediation approach.)

Finally, there are less tangible benefits from co-mediation that bear mention. First, co-mediation offers the opportunity for better communication: inevitably some parties will get along better with one mediator than another. This can focus, shorten and improve the efficiency of negotiations. Second, often even the best mediators can benefit from the dialogue and insight(s) that result as the mediators work together coordinating settlement in a complex case. This can improve the chance of a comprehensive settlement of all parties and issues.

Conclusion

Co-mediation is a simple solution to the practical constraints on the single mediator approach to settling major construction disputes. By improving the efficiency of the caucus sessions, and diminishing the time between them, co-mediated negotiations can help preserve the time and resources of parties and counsel, and leave them with the feeling that the mediation process was efficient and fair. As a result, co-mediation is an approach well suited to the requirements of complex construction litigation.

Notes

1. Under this approach, a single mediator convenes a joint session of all participants to the mediation who each present their side of the dispute. This is followed by a series of confidential, or caucus, sessions in which the mediator meets privately with each party and continues a process in which settlement positions are evaluated, adjusted and negotiated to a point of either settlement (in most cases) or impasse. In the event of settlement, appropriate documentation reciting the key terms of agreement is prepared and then signed by each decision-maker present.
2. The cost savings from a more efficient co-mediation process easily outweigh the relatively small added expense of utilizing a second mediator when there are more than five or six parties and the issues are relatively complex.