Construction Mediation at the Extremes – Peaks and Pitfalls

Introduction


When I had my mediation epiphany in the early 80’s, community mediation was the only game in town. If you want to ply your trade and hone you skills you have to go where the action is. Soon I was doing one, sometimes two mediations a week. Back then construction mediations were few and far between. One year I mediated all the construction cases at one of the AAA’s NYCity regional offices: three!



Whether community or commercial, facilitative or evaluative, and despite the infinite variety of parties and issues, the fundamentals are the same. Yet each mediation is a learning experience. No matter how many you do you should never be surprised by a surprise. Sometimes they even come in pairs.


The first came at the end of a classic, big city hotel renovation donnybrook, a mediation that turned out to be a facilitator’s fondest dream. The second occurred midway through a mediation about skimpy design and shoddy construction by companies under the gun so a resort owner could cash in on the ski “condo-mania” in the late 90’s. That one became an evaluator’s worst nightmare.



New York


Earlier this year the New York State Supreme Court asked me to mediate a dispute between a developer and a contractor arising out of a SRO facility’s conversion to offices and apartments on New York’s Upper West Side. Four weeks later the parties, their witnesses, attorneys and I were seated around an argument weary conference table in a small, stuffy jury room hidden away in the bowels of the Supreme Court in downtown NYCity.



Supreme Court mediations in NYCity are put on an accelerated schedule, sandwiched between the party’s pre-trial appearances. Preparation by the mediator must follow the dictates of time so facilitative mediation is the rule. A mediator’s subject matter expertise is always a plus, but especially in multi-faceted NYCity construction cases where such time constraints limit research into the subject matter and issues in dispute. Mediation briefs are hastily put together – sometimes no longer than a few pages – and not usually in the mediator’s hands until just days before the mediation takes place.



Another limitation on the mediator is the Court’s “budget” for the mediation. Zero! Mediators come free of charge compliments of the New York court system (and the mediator).



Cases that come down from the New York State Supreme Court in Manhattan are often “down-and-dirty.” The mandatory mediation provision in the Court’s ADR Program supplies the New York mediation community with a wide variety of cases of every size and shape. Most are assigned by clerks under pressure to free up the judge’s calendar. Many are too premature for meaningful settlement discussions. Sometimes the parties and their lawyers are reluctant participants and enter with a “show me” indifference.


So the success rate – about 60% – is not to be compared with that for typical private voluntary commercial mediations – almost 100% ** – where the dispute is ripe for settlement and the players eager to engage in negotiation.



But sometimes the stars are in alignment at the Supreme Court and it’s a mediator’s delight with never a dull moment.


So as the attorneys were putting the finishing touches on a milliondollar settlement agreement, the developer surprised me with: “I did all the work. What am I paying you for?” I was eager to tell him two things:



First, he was shocked when informed that my services were free of charge. Neither attorney, as is too often the case, had so advised his client of the court’s “benevolence.”



Second, I smiled as I told him that I took his “work” comment as a compliment and explained why:



I had, in fact, been “working.” At the outset I had interrupted the developer’s monitoring of his BlackBerry and brought him into the discussion that followed the opening statements by the attorneys. Sometimes that’s all it takes. A suggestion here, a question there – just enough to keep the parties engaged and the back-and-forth going in the right direction. Facilitative mediation at the max is minimal intrusion and comment by the mediator – the less the mediator says, the better – as long as the parties are on track for settlement.



And I had also done “work” up-front. Through telephone conversations with the attorneys, I knew they knew their cases. Even though the parties’ demands were light years apart it was clear their clients were ready to negotiate. I verified that the key people would be present, identified who the dealmakers would be and insisted that they be there for the mediation, not a “phone call away,” and no in-house counsel in their stead. (I made that mistake once.) From their brief briefs and meager document submittals (supplemented after requests by the mediator) I knew enough about their positions on the issues to listen intelligently once the the discussion got underway and prepared to participate whenever necessary.



But soon after the developer got involved in the discussion between his project manager and the contractor, he took over.


Before long he initiated a series of caucuses (“Let’s go out in the hall”), one-on-one with the contractor and then one-on-two when the superintendent joined them. Neither the attorneys, nor I, ever left the table to join any of the caucuses. And I didn’t initiate any. By the end of the day they had a deal. The attorneys were working on the settlement agreement when he made his glib remark. This was probably not the first time that a party thought that they alone had saved the day at the end of a successful mediation, wondering, like the developer, what the mediator had done. All of a sudden a deal is on the table and participants don’t realize how it really got there and few, unlike the developer, give it a second thought. The most satisfying facilitative mediations are those where the parties do all the work and the mediator just keeps things on track. The parties negotiate the settlement, structure the deal themselves, sign off on it and voice a commitment to seeing it through. Those kinds of deals stand up.



**Colorado



Coincidental with the Supreme Court case, I received an e-mail from a group of attorneys inquiring if I would be interested in mediating a 4-Party construction dispute in Colorado. It was between a developer, architect, contractor and homeowner’s association over the construction of a 200-unit ski retreat nestled in the Rocky Mountains. They had read about Fact-Based Construction Mediation (FBCM) on the internet (www.cminco.com, www.mediate.com) and wanted to give it a try.


It’s an aggressive,evaluative type of mediation especially suited to construction disputes. Six weeks later, at a mountaintop ski lodge, I was getting acquainted with the attorneys and their clients and gathering information for the yet-to-be scheduled mediation. Beyond simple evaluation, in FBCM the mediator evaluates each party’s case and puts it to the test in give-and-take, devil’s advocate/early-neutral-evalulaor caucuses with the parties’ attorneys. These occur before party presentations or settlement negotiations. They’re dress rehearsals for what may occur during the formal mediation sessions, the mediator playing each party’s friendly antagonist. The intent is to level the playing field for all participants so that each party has a realistic understanding of its own case with all its warts and weaknesses. It’s not appropriate for all cases and personalities. There’s a real danger that a party’s attorney may turn on the mediator or lose confidence in the mediator’s neutrality after engaging in such a “give and take” debate, a debate that may focus on inconvenient truths a party may not be eager to embrace. And if not done face-to-face, say, by phone or e-mail, the danger is enhanced.



[Allan Bonner of Communications Management Inc. espouses the use of “reality checks” and counseling clients about the “consequences of their actions” in his upcoming book, “Tough Love at the Mediation Table.” In FBCM, it’s done before you get to the table.]



So FBCM is not for everybody and must be entered into with eyes-wide-open. Parties who agree to participate in a FBCM are put on notice that “thick-skins” and “senses of humor” are essential. With this admonition and after discussions with the attorneys about its “in-your-face” style, all agreed to give it a go.



No touchy-feely, hand-holding facilitative stuff for these Rocky Mountain Boys.



However, back in New York and after only two rounds of electronic devil’s advocacy with one party’s attorney, during which I suggested that some of his defenses might not hold up, he emailed: “I don’t see the case the same way you do. The two big players (not us!) are the parties responsible for any problems in the project as built. I don’t know how far we’re going to get in this mediation if you see the case (as you do).”



Shortly thereafter, without further warning, I was more than surprised when he declared that he and his client “would no longer participate” in the mediation. (This was their perfect right and it’s the fundamental aspect of mediation that distinguishes it from litigation and arbitration: the parties are always in complete control of their fate until they sign off on a settlement agreement.) Neither the mediator, nor the other attorneys could dissuade him, nor would they go on without him (and his client).



Postmortem


A mediator once said: “Mediators boldly go where angels fear to tread – right into the very heart of conflict. And, like intrepid guides, we are able to lead disputants to level ground. We help people achieve resolution and overcome their differences, even in the face of seemingly intractable conflict.”



FBCM goes beyond “bold” so attorneys and their clients may hear things privately from the mediator they do not like or that make them uneasy. Lawyers not experienced in construction disputes often gravitate toward strict legal positions and de-emphasize the construction issues. [In that regard, such attorneys should take notice of Harvard Law School’s just announced curriculum overhaul, the “broadest in more than 100 years.” First year students will now be required to take a “course on legal problem solving, in which they will prepare for resolving clientsEdilemmas rather than analyze abstract legal issues.”] Ironically, part of the beauty of FBCM is that these attorneys, and those they represent, can really benefit from this kind of evaluative mediation if they go with the flow and trust the mediator.



Trust is basic to all mediations but is especially critical to FBCM – it’s its existential ingredient. The first task for any mediator is to engender trust in the parties as to the mediator’s objectivity and expertise. The success of JAMS is largely due to its built-in trust factor endemic to its ex-judge panel. Mediators outside this judicial “comfort” umbrella have to develop their own reputations and then work hard with the parties to justify it. And if you go out of your geographic sphere of influence you must make sure you put enough extra time into assuring that you have attained this fundamental goal. Otherwise a mediator may look back with dismay if a party opts out of a mediation on a “trust” related misgiving.



But just as essential to the success of FBCM is that each participant must commit to its philosophy, follow its ground rules and work hard, hand-in-hand with the mediator, to honestly assess its case. If a party enters a mediation strident on too many issues, resolution will go nowhere. And so everyone in Colorado was warned up front not to submit briefs nor to “lock” into positions. The mediator first wanted to hear what each party had to say and form some objective opinions about the issues for private discussion with each of them. The attorney who withdrew, however, went on record prematurely. Unwilling, unable – in a ‘state of denial’ – or perhaps feeling boxed in and embarrassed to make a silent retreat or a mid-course correction, he chose instead to ‘stay the course’ and abruptly short-circuited the mediation. Still, the parties got their money’s worth. They all received an objective analysis of its case from a construction disputes expert that will be invaluable in the future disposition of their dispute, wherever it ends up.



Post Postmortem



A retired judge, who’s a friend, fellow New Yorker and full-time mediator tells me FBCM may be too harsh for mediation clients. I tell him that construction people can take it. But, then again, maybe not all those in the construction community are accustomed to “New York City frankness,” to paraphrase ex- Police Commissioner Bratton. International mediators must learn the customs and sensitivities of the natives. Apparently, domestic mediators must do the same or chance a rude awakening and learn that lesson the hard way.

                        author

Gary Morgerman

Gary Morgerman, founder and president of Construction Mediation Inc. (CMInc), was born, bred, and educated in New York City. A graduate of the Cooper Union for the Advancement of Science and Art, with a degree in structural engineering, he later attended New York University School of Law. Twenty years ago… MORE >

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