Arkansas Construction Mediation
Virtually every construction project starts with a spirit of cooperation
between the owner, the contractor and the design team with a mutual shared promise to work together
to bring the project to successful completion. Promises and agreements
at a project kick-off meeting to resolve disputes amicably may be made with the
best intentions but rarely occur. Disputes arise on virtually every
construction project and mediation is commonly employed to help resolve them.
However, some mediation techniques can actually drive the parties farther apart
and be counter-productive. As a result, it is important to consider various
dispute resolution options and the pros and cons of various mediation
techniques, including the use of technical experts, in order to decide which
techniques are most likely to provide for effective dispute resolution.
Since the views or opinions of a mediator
are not binding on any party, mediation can only be successful if the mediator
can convince the parties that resolving the dispute is in each of their best
interests. It is often said that in successful mediations, neither party is
completely satisfied with the outcome but each can accept the result.
each mediator has a unique style, most mediators generally employ one of two
styles: facilitative or evaluative.
Under the facilitative approach, a mediator does not provide opinions or
evaluation of a position. Instead, during joint sessions with the parties, the
mediator asks questions designed to flush out the parties’ respective positions
with the goal that this process will help the parties reach a consensus on the
Under the evaluative approach, joint sessions with the parties are
limited and the mediator conducts multiple separate sessions with each party
during which he states his views on the strengths and weaknesses of a position,
including in many cases his views on the likely result if the case were tried
by a judge or jury. The views and opinions of a mediator have no binding effect
but are simply tools to resolve the dispute. However, since a mediator using
this approach opines on specific legal issues and the merits of each party’s
claims, he or she should have legal expertise as well as significant knowledge.
Further, since the goal of mediation is settlement, it is important to remember
that in expressing his views the mediator has an incentive to convince each
party that its position has significant weaknesses.
Good mediators will alter their approach given the flow of a particular
mediation. A mediator that generally utilizes a facilitative approach might
feel at some point that expressing his opinion about a particular issue might
aid settlement. However, in choosing a mediator it is wise to consider his
general approach and how that might play out in light of the issues and
parties. It is also important to keep in mind that the mediator’s goal is to
resolve the dispute. Even when a mediator provides an opinion regarding the
merits of a case, it may not accurately reflect the likely outcome, but rather
where the mediator believes the case may settle.
Regardless of the overall approach or style of the mediator, most mediations
begin with some form of a joint session with all of the parties. At this
session, each party will typically describe his 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. Just having the
other party hear your views and your frustrations can have a beneficial effect.
At some mediations, the joint session includes a presentation by the
experts. In fact, it has become commonplace, particularly in construction
defect litigation regarding production or tract housing, for mediations to
include expert presentations. However, whether this approach will likely prove
beneficial in any particular case requires careful consideration.
toward the use of expert presentations or mediations appears to be based on a
theory that if 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.
This theory is suspect. First, it ignores the fundamental reason or purpose
of an expert. An expert is retained to give his subjective opinion on a topic
which requires some technical expertise or knowledge and is beyond common
knowledge. As a result, different experts can legitimately view almost any
issues differently. Further, an expert has been retained and paid to advance
the position of a particular side. Therefore, his goal at an expert
presentation is to advance that side and to convince the other side that he is
right. The expert for the other side obviously has the exact opposite goal. If
they were to reach agreement on a particular issue each would need to concede
the merit of at least some part of the other side’s position and, they can
really only do that if they are given permission by the party that retained
them to do so.
As a result, rather than attempting to build consensus, most experts and
attorneys view the purpose of an expert presentation as an opportunity to
convince the other side that the claim against their client is baseless. In
many cases, this approach can lead to a battle between the experts which is
completely antithetical to the mediation goal of settlement. This problem can
be greatly exacerbated if the expert presentations include questioning of an
expert by lawyers and/or experts for other parties.
On numerous occasions, I
have observed expert presentations devolve into questioning sessions that
amount to free depositions by your opponent or your opponent’s expert of your
expert. Most mediators seem to view this as part of the process and do little to
control it. As a result, counsel for the expert must essentially defend as in a
deposition and extremely limit the questions that an expert will answer. Again,
rather than building a spirit of cooperation this process breeds animosity.
Further, if you agree to participate in a mediation that includes expert
presentations, it is paramount that your expert is prepared and through his
presentation demonstrates that he is knowledgeable and will make a convincing
witness if the matter is likely to be taken to trial. As a result, one key
consideration on determining whether to include an expert presentation at
mediation is whether you believe that the benefit of having your expert make a
presentation justifies the cost of having the expert prepare to make it. While
the benefits of even a quality expert presentation are suspect the effect of a
poor expert presentation are unquestionably detrimental. A poor expert
presentation will cause your opponent to believe that your case and/or your
expert are weak and substantially decrease the odds of reaching a settlement at
a mediation or later. In fact, you will almost need to make an additional
expert presentation or retain a new expert to overcome the detrimental effect
of a poor expert presentation.
In lieu of an expert presentation, an effective technique is to have the
opinion of the expert presented through the party’s attorney or through a
report prepared by party’s expert and attorney. This approach allows the
expert’s opinions to be disclosed and discussed. This allows the opposition to
know the views of your expert and the case against them but does not subject
your expert to questioning and does not require the cost of preparation for an
This approach also limits the role that technical evaluation play in the
mediation. As set forth above, experts will likely be able to have legitimate
disagreements regarding any technical issue of significance. Therefore, it is
unlikely that the experts will reach agreement on opposing technical issues
even if they are extensively vetted. For example, technical disputes in a
construction case commonly concern the impacts of, and responsibility for,
delays on a project. While the number of delays beyond the approved project
schedule by which a particular task was actually completed may be easily
determined, the reason for the delay and the impact of the delay are likely
subject to divergent expert opinions. Given the multiple ways in which
schedules can be manipulated and analyzed it is unlikely that a meeting of
experts would result in agreement as to the impact of a particular delay.
Further, an expert presentation by an opposing party’s expert on the schedule
impact of a particular delay is unlikely to convince a party that the
counter-opinion by his own expert is wrong, particularly since the answer to
the question is likely subjective and the party has paid his expert a
significant sum for his opinion.
The same is true with most technical issues. While it is important to learn
of the differing views of the respective experts on the issues that is not
determinative of whether mediation will be successful. Ultimately, a case will
settle if each party believes, based on its assessment of its position and the
costs of risk of trial, that settlement is the best option.
A good mediator can
help the parties reach that conclusion. However, that conclusion does not need
to be based on an expert presentation. In fact, in many cases such a
presentation will be detrimental to the settlement process.