Like all other walks of life construction industry has its own disputes. The most disputes in the construction industry happen between the builder or contractor and the property owner. These disputes can be resolved either by way of traditional litigation which is very expensive and time consuming or through mediation or arbitration.
Construction mediation provides each party with the opportunity to express their views. It provides each party an atmosphere to conduct analysis of the merits of its claim. Construction mediation provides opportunity to each party to hear the position of the other side and express their own in respectful manner. Submitting a construction dispute to mediation while the project is on-going can have a therapeutic effect and help get a project back on track.
While each construction mediator has a unique style, most construction mediators generally employ one of two styles: facilitative or evaluative.
Under the facilitative approach, a construction mediator facilitates communication between the parties. The mediator does not provide opinions or evaluation of a position. Instead, during joint sessions with the parties, the construction mediator asks questions designed to flush out the parties’ respective interests with the goal that this process will help the parties understand each other and resolve the conflict. Under the evaluative approach, the construction mediator holds minimal joint sessions with the parties and conducts multiple separate sessions with each party during which the construction mediator expresses his views on the strengths and weaknesses of a position.
The construction mediator in many cases provides the parties his views on the likely result if the case were tried by a judge or jury. Although, the views and opinions of a construction mediator have no binding effect but are simply tools to resolve the dispute. However, a construction mediator using this approach opines on specific legal issues and the merits of each party’s claims, helps in resolving conflict. Since the goal of mediation is settlement, it is important to remember that in expressing his views the construction mediator has an incentive to convince each party that its position has some weaknesses.
Regardless of the overall approach or style of the mediator, most construction mediations begin with a joint session with all of the parties. At this session, each party will typically describe its case. In some circumstances the act of being able to present one’s case or story to the other side goes a long toward getting the parties engaged in the settlement process.
Services of experts are also very helpful in resolving construction disputes. At some construction mediations, the joint session includes a presentation by the experts. In fact, it has become commonplace, particularly in construction defect litigation. The trend toward the use of expert presentations or mediations helps parties resolve conflicts on the basis of objective criteria. The respective experts meet and discuss their views on technical issues they may reach agreement on the issues and this agreement will form the basis for resolution of the case.
