Construction Law

Effective Tactics for Construction Mediation featured image

Effective Tactics for Construction Mediation

Due to the long duration and dispute-prone nature of construction projects, it’s important to understand your options for resolving conflicts during the building process. Alternative dispute resolution (ADR), such as mediation and arbitration, are a means of settling disputes without litigation. The mediation process involves the meeting of two parties with a mutually selected neutral third party to assist in the negotiation and is a flexible and cost-effective method to resolve conflict and preserve the parties’ relationship. The Denver construction lawyers of Cotney Attorneys & Consultants can represent you during the mediation process. 

A research study on construction mediator tactics performed by The University of Hong Kong (HKU) found that the two most versatile and effective tactics for the mediation process are trust building and reality testing. In this brief article, a Denver construction mediation lawyer will discuss successful construction mediation tactics and why mediation may be the best option for handling your dispute. 

Related: 4 Reasons Why Mediation Can Help Settle Your Dispute

Trust Building

Building trust is a crucial element of the mediation process, as distrust can hinder the disputing parties and mediators from achieving a mutually-beneficial resolution. While the disputing parties may be facing a damaged relationship due to the nature of their dispute, it is the role of the mediator to establish a bridge of fairness and neutrality between them. Parties who trust in both their mediator and the process of mediation are more likely to disclose important information, give and take negotiations, and accept the mediator’s actions. 

Before the mediation process begins, the mediator can secure trust in the parties by demonstrating their mastery of the mediation process, most likely through a resume or record of past cases with similar disputes. Only then, can the mediator work to generate rapport and reduce bias in the mediation process. Trust-building tactics include protecting all parties from intimidation or disrespect and allowing each party to disclose issues without interruption. 

Related: Mediation Best Practices for Contractors

Reality Testing

A frequent concern when approaching the mediation process is that parties are arriving with high expectations and a strong sense of legal certainty regarding the strength of their case. This mindset can hinder or entirely prevent productive negotiation. Reality testing is a mediator tactic to combat this obstacle by adapting the expectations of the parties to reality. This goes hand-in-hand with trust building as an inappropriately performed reality test can cause a party to lose trust in the mediator. The process of reality testing involves inviting one or both of the parties to adjust their perceptions of the claim. For an accurate assessment of your claim and the factors involved in a dispute, it is imperative that you contact a Denver construction dispute lawyer

Reality testing may be necessary for a number of reasons, including inaccurate assessment of the transaction costs of taking the dispute to court or the business obstacles to reach a negotiated conclusion of the dispute. Through a series of reality-testing questions, the mediator can invite re-assessment of their claim on behalf of the party and accurate assessment of the dispute from both sides. The more specific the reality-testing questions and the more determined the mediator in following-up from the process, the more beneficial this tactic will be. For more information on the methods available to you for the resolution of your dispute, reach out to a Denver construction dispute attorney

Related: Why Mediation Should Be Used For Your First Attempt at Resolving a Dispute

Option Identification

Option identification, similar to trust building, is crucial throughout all stages of a dispute. The mediator can help the disputing parties develop options for the conflict’s resolution by transforming collected data about the issue and their interests into mutually-beneficial solutions. A mediator is particularly helpful in addressing this aspect of the dispute because they can identify options the parties may not have recognized on their own. 

There are many procedures for option identification, including open discussion, task groups, and nominal group process. Open discussion is preferred for parties comfortable enough to share ideas without committing to them under ground rules by the mediator. Nominal group process aims to maximize individual solutions and task groups divide the issue into logical categories with options for each category. A Denver contractor lawyer or a Denver construction attorney can assist you in understanding the financial implications of your options and how to approach the dispute. 

Cost-Benefit Analysis 

Cost-benefit analysis, or costing, is a mediator tactic used throughout the mediation process as a means of analyzing the costs and benefits of the options available to the disputing parties. It typically occurs towards the beginning of the process in which parties are deciding whether or not to pursue the dispute and later on during the mediation process as settlement possibilities have begun to be identified. 

The central task of the parties and mediator is to examine the list of settlement options identified and access their relative benefits or costs in comparison to how well their interests will be satisfied by the solution. Additionally, the parties should consider their ability to implement the settlement option with or without outside help, the reactions of decision makers, and the costs of implementing the approach. For more information on the mediation process or other methods of handling your dispute, contact a Denver contractor attorney.

If you would like to speak with a Denver construction mediation attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.