
May 5, 1998

10 tips to make your mediation successful

By GREGORY L. BERTRAM
Special to the Journal

Developers and construction company owners facing construction claims, take heed: Federal and local state courts now require that civil claims and disputes be settled by alternatives to costly and time-consuming litigation. No longer is it a question of whether Puget Sound-area construction claims will be mediated, but how and when.

Mediation is simply an informal process in which parties to a dispute agree to engage a neutral party to help them resolve their differences. In essence, the skilled "neutral" identifies and discusses the various risks to each party in continuing the dispute. Typically, most of the mediator's work occurs in confidential sessions with each party.

Mediation offers the advantages of confidentiality, control and the opportunity to resolve differences before costs reach the stratosphere.

Below are certain actions you can take to enhance your chances of reaching a successful outcome. Follow them, and you increase your odds of settlement. Ignore them, and you can be sure that mediation will represent nothing more than a dress rehearsal for trial.

Empower participants: Send someone with the authority to settle.

No mediator can perform effectively if participants in the process do not have the authority to settle their respective claims. Likewise, forget the notion of bringing people together by telephone. Teleconferencing is a poor substitute for the physical presence of a claimant or defendant.

In a claim involving the collapse of a wall of an automotive service center during construction, for example, the plaintiff-owner failed to send a representative to the mediation with sufficient authority to compromise the claim. The owner was unavailable for even a teleconference -- and the process predictably languished until he began to participate actively.

Since most construction claims involve multiple parties, it is vital that all of them take part in the mediation conference to make it possible to reach a settlement.
Demonstrate good faith: Participate with the intention of resolving differences.

The mediation process requires all parties to participate in a good faith effort to resolve their differences. Both the claimant and defendant demonstrate good faith by being willing to be flexible on issues involving money.

In a recent case involving thousands of allegedly defective commercial cabinets, the defendant -- believing that the plaintiff could never establish proof of his company's liability -- announced at mediation that his company would pay nothing whatsoever to the claimant. Predictably, this particular mediation lasted less than an hour.

While each party's risk and relative economic power directly influence how flexible each party is willing to be, it is folly to think that a multinational, multibillion-billion dollar prime contractor can be brought to its knees by a one-person subcontractor, regardless of the legal and factual merits of either party's position.
Avoid the sandtrap: Do not allow your attorneys to propose one of their golfing buddies to mediate your claim.

You may have the best lawyer in town. But good lawyers do not necessarily make the most effective mediators. If you want ensure a successful mediation, you need to select a successful mediator.

As mediation becomes an increasingly popular form of dispute resolution, a handful of full-time mediators has emerged. In a business where experience counts, you need to consider carefully whether or not you want to engage someone who performs mediations part-time or full-time.
Supply information: Provide the mediator with a summary of your position in advance of mediation.

Give the mediator a brief written summary of your position prior to the mediation. By having a sense of each party's position in advance, the mediator can work more efficiently. He or she can quickly focus upon what is essential to resolution, whether it be issues, personalities or a combination of these.

Advance knowledge of each party's position is especially helpful in multi-party construction cases. It allows the mediator to confer with each party instead of ignoring them when being introduced to a new party's position during mediation.
Fair warning: Alert the mediator to special problems in advance of the mediation.

Experienced mediators appreciate being advised of unique problems and personalities prior to the mediation. The initiative here rests with a party's attorney. Most mediators cannot guess at the presence or impact of one or more extreme personalities among the parties to a forthcoming mediation.

So, if your company president is an individual who conjures up visions of Attila the Hun, do both the mediator and the process a favor: provide fair warning.
Limit rhetoric: avoid inflammatory statements in joint session.

Many mediations begin with a joint session attended by all parties, their counsel and the mediator. Joint sessions allow the mediator to set the tone for the negotiations to follow and provide an opportunity for others to express their views. Attorneys and their clients, however, should be careful to avoid incendiary comments in the presence of their opponents. Other professionals generally do not wish to be assaulted with bombastic, self-serving pronouncements by their adversaries.

Offended parties have been known to leave mediations moments after opponents have launched into diatribes. Tact is the watchword in joint session remarks.
Be honest: Do not deceive your mediator.

Many attorneys, and some of their clients, often try to prove their negotiating prowess by attempting to deceive the mediator. This "strategy" wastes the mediator's time and will result in the mediator's lack of confidence in your position.

Assume that the mediator has been routinely confronted by Olympic-caliber efforts to deceive him or her, and that your own efforts pale in comparison. Believe instead that the professional mediator will zealously safeguard your confidences and admire your courage in privately acknowledging weak points in your position.
"Pack Light": Expert witnesses at mediation = excess baggage.

Construction claims are notorious for being laden with expert witnesses. Mediation, however, is not the proper forum to showcase your high-priced expert. Other professionals know, of course, that they too can acquire a favorable expert opinion for a price. Focus instead upon the agreed and disputed facts and the resulting legal principles.
Substantiate claims: Bring key contracts, correspondence and relevant documents to the mediation.

Construction claims are fraught with various written agreements between the parties and disputed interpretation of those agreements. When one party proclaims a self-serving interpretation of a critical agreement or letter, it helps to have a legible copy of the document itself at mediation. Frequently, a party or attorney's recollection of the essence of a written document is refreshed, and sometimes dramatically altered.

On the other hand, it is seldom necessarily to trundle copies of all 20,000 change orders, invoices or poetic musings by the project superintendent to the mediation. Use a strong dose of common sense, spiced with practicality, to keep things moving along.
Act immediately: Upon settlement, prepare and sign a settlement memorandum.

Each settlement reached during a mediation should be reduced to a written settlement memorandum. A written settlement memorandum is especially important in multi-party construction cases where agreed rights and obligations flow to and from numerous parties.

Don't expect the mediator to draft the settlement agreement. Rather, the parties who have agreed to settle their differences and their attorneys are responsible for accurately reducing to writing the terms of the settlement. Prudent mediators will spurn invitations to draft settlement agreements, lest they become a party to a future mediation.

The foregoing tips do not guarantee a successful mediation. Mediation is an elastic, dynamic settlement process that is not amenable to any strict mechanistic approach. However, by adhering to these suggestions, the prospects of settling any case in mediation are considerably increased.

Gregory Bertram has mediated more than 2,000 commercial cases during the past 12 years, including construction claims, product liability, professional negligence, employment disputes, land use and environmental claims. He is affiliated with the Washington Arbitration & Mediation Service, Inc.