To Mediate or Not to Mediate: That Is the Question - Chapter 10 - AAA Handbook on Mediation - 2nd Edition

CHAPTER 10

TO MEDIATE OR NOT TO MEDIATE:
THAT IS THE QUESTION
Roger J. Peters and Deborah Bovarnick Mastin

I. Introduction
To mediate or not is a question parties to major construction disputes
should ask themselves whenever a dispute arises. Unfortunately, it seems
that, with the rise of limited liability companies, project asset-based
financing, the shift to engineer, construct and procure (EPC) and
design/build contracts, as well as the desire to finish projects and put
them on-line as fast as possible, there is a rush toward costly, timeconsuming
litigation and arbitration.
Fortunately, experienced construction participants and lawyers are
discussing the role that mediation should play. To use mediation
effectively, the case must be appropriate for mediation, and the timing of
the mediation needs to be deliberately chosen. Especially in connection
with a serious effort to resolve complex, fact-based construction
disputes, an early mediation may be more or may be less fruitful than a
mediation that occurs later in the claims analysis process. While
mediation has been incorporated as one of the first steps in the claims
procedures in some standard form construction contracts, parties can
strike the provision from the contract. They can also agree to mediate
even when the contract is silent as to procedural conditions prerequisite
to commencing litigation.