Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

The Key to Super Success in Construction Mediation: The Embedded Mediator

by Dena Schechter
September 2007 Dena Schechter
Mediation as a remedy has become part of many standard construction and architectural contracts. This is a demonstrable result of the increasing recognition of mediation’s virtues. Disputes are resolved more quickly and efficiently through mediation and are surely more cost effective than proceeding to trial. Construction, by its very nature, gives rise to conflict; it is rife with potential for litigation. The presence of so many entities whose interests are intersecting, but not concomitant is a fertile ground for dispute. There are, to name some of the stakeholders, principals, architects, engineers, contractors, sub-contractors, financiers, tenants, governmental bodies (licensing agencies). When conflict erupts it is often rancorous. The stakes can be high and the circumstances highly charged. How can a mediator succeed in such an environment?

There is a way both to diminish prospective conflict and to augment the possibilities for convergence. The concept of the “embedded” mediator holds the key not only to super-success in construction mediation, but to conflict prevention, or at the very least its mitigation.

If a mediator is part of the construction team from the beginning of the process, especially in complex construction, costly construction delays may be averted or at the very least alleviated. There is more to be gained by early intervention not only in terms of reaching a mutually negotiated resolution, but in terms of averting possible derailment of the project. The outcome of the entire enterprise can hinge on the positive resolution of issues at their earliest appearance. Disruptions of the construction process can be as costly as litigation for all the parties, especially where there might be penalties, incentives, rewards and/or cash flow issues relating to completion dates. A combination of disruptions and litigation can spell disaster.

When a project’s construction costs are budgeted, the cost of conflict is not generally factored. It is, however, a potentially high and unanticipated “extra.” It is the extras that notoriously slow down construction and provoke cause cost overruns which are detrimental to the profitability of a project, or in the extreme, destroy it completely.

Building mediation into the construction process (no pun intended), having an on call facilitator, who knows what questions to ask or what areas need addressing, can be a powerful force in the successful construction project. The reason? The embedded mediator needs no learning curve. The mediator is aware of issues on an ongoing basis. The parties cede nothing of their authority in this process. They remain in charge of the process and remain the decision makers. The mediator can help fashion and initiate a collaboration plan and even train the stakeholders in early intervention. In fact, if the parties can develop an early sense of partnership they may avoid some of the adversarial behaviors that can impede conflict resolution. Anticipation ought to trump damage control much of the time.

Having a neutral expert who is a practiced communicator who can facilitate communication before a disruption of the project is akin to having a physician who practices preventive medicine. A respected mediator who is familiar to all can serve as a bridge between the parties, helping them to see their common interests in moving forward, and demonstrating the power of collaborative thinking. The notions of mutuality and collaboration become ingrained in the project, which in turn stays on course to the benefit of all. The seeds of conflict do not have the opportunity to grow, because they are eradicated and thus cannot develop into out-of-control weeds.

The secret of successful construction mediation is to make the presence of the mediator as natural to construction as any other party to the process. The “embedded” mediator as preventive measure is a concept which predisposes a project to come in on budget and in line with expectations. The real measure of success in construction mediation will be when the inclusion of an embedded mediator in becomes a common provision of construction contracts. The mediator will be valued as a resource to be utilized in the course of construction, not merely as a consequence of it.

Biography


Dena Schechter became a mediator through the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law. She serves on the Pro Bono Panel and Party Pay panels of the Los Angeles Superior Court Alternative Dispute Resolution Services, mediating litigated cases as well as maintaining a private practice. Mrs. Schechter is also an arbitrator.

Mrs. Schechter practices alternative dispute resolution in multiple and innovative ways. She has pioneered the concept of an “Embedded Mediator,” a mediator who is brought in at the beginning of a multi-party, complex project who can have knowledge of issues as they arise and may therefore be able to facilitate a smoother process throughout the project, even preventing conflict from causing costly delays or even derailing the venture. In addition to “The Embedded Mediator,” a copy of another of her articles, “Mediation Music,” can be found on the Mediate.com website

Mrs. Schechter specializes in commercial disputes focusing on Real Estate, commercial and transactional issues as well as disputes in the insurance, employment and the entertainment fields. Mrs. Schechter is a member of the Alternative Dispute Resolution Sections of the ABA, and of the Beverly Hills Bar Association and the Chartered Institute of Arbitrators of Great Britain and North America. Her website can be found at www.mediate.com/Schechter.



Email Author
Website: www.mediate.com/schechter

Additional articles by Dena Schechter

Comments