Comparing Theory and Practice: Survey Results of What Attorneys and Arbitrators Want in Construction Mediation and Arbitration

AuthorBy Dean Thomson and Julia Douglass
27Volume 42 Issue 3
Published in
The Construction Lawyer
, Volume 42, Number 3. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Comparing Theory and Practice:
Survey Results of What Attorneys
and Arbitrators Want in Construction
Mediation and Arbitration
By Dean Thomson and Julia Douglass
Theories abound about what
construction attorneys want
in mediation sessions. Equally
numerous are theories about
procedures, practices, and
preferences of construction
arbitrators. Most of these
theories are based on the advo-
cate’s personal experience, but
to better test the accuracy of
those assumptions, the authors
conducted two surveys to get
a broad perspective on these
questions. The first part of
this article examines survey
responses from over 330 con-
struction attorneys about what
they want from their media-
tors and whether mediators are
meeting that demand. The second part of the article offers
survey responses from over 220 construction arbitrators
about how they conduct arbitrations and make decisions.
Guiding Mediation to Meet Demand
All standard construction industry contract forms require
mediation of disputes as a condition precedent to pro-
ceeding toward binding dispute resolution;1 accordingly,
it is a fair assumption that parties want their disputes
to settle and use mediation to achieve that goal. There
is wide variation in how the mediation process proceeds,
but a common approach (which this article will refer to
as the Standard Approach) is as follows: (i) the parties
(or some dispute resolution service
) select the mediator;
(ii) the parties and mediator schedule the mediation ses-
sion; (iii) several days before the mediation, the parties
send their position statements to the mediator and/or
each other; and (iv) nally, the parties attend the sched-
uled mediation session to see if the mediator can help
them settle their dispute.
Because the majority of construction disputes even-
tually settle, it is fair to say that the Standard Approach
works, but to examine how it might be improved, the
authors conducted a survey of 330 construction law
attorneys from across the country to determine whether
the Standard Approach was delivering on all that prac-
titioners desired.3 This portion of the article discusses
the results of that survey, and, based on the responses,
proposes modications to the Standard Approach to bet-
ter achieve the results desired by the survey respondents.
Important Timing Considerations for Effective
In general, survey respondents indicated they wanted
a mediation process that facilitated a rational, well-
informed settlement as early as possible and that early
engagement of a mediator in the parties’ mediation
planning best serves that goal. Not surprisingly, when
respondents were asked to rate on a scale of 1–10 (10
being highest) how important it was to resolve disputes
before incurring full discovery expenses, the average score
was 7.7.
While limiting the cost and time associated with
full discovery is important, receiving sufcient informa-
tion to be able to make a good settlement decision is
also important. Traditionally, the goal of full discovery
prior to mediation was to give parties complete infor-
mation so they could make rational decisions on how to
resolve their disputes.
Without full litigation discovery,
respondents reported that their information needs were
met only 6.5 times out of 10 before they participated in
a mediation. The difculty with this approach, however,
is that the discovery process used in litigation to deliver
that information has increasingly become too expensive.
Therefore, the goal of a good mediation process would
be to strike a balance between full litigation discovery
and the information needed to make an informed deci-
sion. This goal is often hard to achieve even where the
parties attempt to fashion a cooperative information and
document exchange without resorting to a more “full
litigation discovery” approach. To avoid this problem,
the parties can enlist a mediator early in their negotia-
tions to help craft an information exchange specic to
the disputes (well short of full discovery) that can be
geared toward a successful mediation process that ties the
parties to structured discussions so they do not become
intransigent before a meaningful and informed media-
tion session occurs.
Dean Thomson
Julia Douglass
27 27 7/18/2023 1:52:08 PM7/18/2023 1:52:08 PM

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