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

• Author: By Dean Thomson and Julia Douglass
• Pages: 27-37

THE CONSTRUCTION LAWYER

27Volume 42 Issue 3

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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

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MEDIATION AND ARBITRATION

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

2

) 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

Mediation

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.

4

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.

5

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.

6

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