Originally from:
AAA Handbook on Construction Arbitration and ADR - 2nd Edition - Electronic
AAA Handbook on Construction Arbitration and ADR - 2nd Edition - Hardcover
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CHAPTER 16
MEDIATOR WISDOM FROM THE EXPERTS
James Acret**
I. Introduction
Mediators serve a number of functions. One expert classified these
functions as teaching, criticizing, supporting, probing and clarifying. Of
these five functions, some experts believe that criticizing and teaching
are least appreciated by the parties and that mediators should concentrate
their efforts on probing and clarifying.
II. Joint Sessions and Caucuses
Some mediators think joint sessions are a waste of time and may be
dispensed with because they usually consist of exchanges, sometimes
acrimonious, of information and arguments that the parties have already
exchanged ad nauseam. Others, however, say that a joint session should
be kept going as long as it is making some progress. When the joint
session breaks down, that is the time to call for a caucus.
During caucuses, parties may throw out vague dollar figures. Many
experts say the mediator should determine whether a particular number
exposed by a party is a genuine offer. If it is, the mediator should
evaluate whether the communication of that number to the other party
will advance the purposes of the mediation. As a neutral who must not
take sides, the mediator should avoid reacting negatively to the size of
the offer, even if it might be considered outrageous. To finesse the
situation, the mediator might attempt to obtain the party’s agreement to
TABLE OF CONTENTS
PART I: Managing Risk and Avoiding Disputes
Chapter 1
Avoiding Disputes in the Design-Build Environment
Michael C. Loulakis
Chapter 2
Strategies to Prevent Construction Contract Disputes
Luc Picard
Chapter 3
ASA/AGC/ASC Joint Guideline on the
Avoidance and Resolution of Construction Disputes
ASA/AGC/ASC
Chapter 4
The Key to Claims-Free Projects-Identifying and Managing Construction Project Risk
Ava J. Abramowitz
Chapter 5
Negotiating Consequential Damages Waivers
Charles M. Sink and David K. Ismay
Chapter 6
U.S. Project Disputes: Has the Time to Consider Adjudication Finally Arrived?
Michael Evan Jaffe and Ronan J. McHugh
Chapter 7
Searching for Balance in Conflict Management: The Contractor's Perspective
Richard Fullerton
Chapter 8
Resolving Public Sector Disputes: A Road of Politics and Potholes
Richard D. Rhyne
PART II: ADR in the Construction Industry
Chapter 9
Alternative Dispute Resolution in the Construction Industry
James P. Groton
Chapter 10
"Hybrid ADR" in the Construction Industry
James H. Keil
Chapter 11
Between the Devil and the Deep Blue Sea-
Subcontracting and Jurisdictional Labor Disputes
Gregory R. Begg
Chapter 12
Dispute Resolution Using a Neutral Architect
Jack Kemp
Chapter 13
Seeing is Believing: The Importance of Site Visits in Arbitrating Construction Disputes
Michael J. Altschuler
Chapter 14
Understand ADR Procedures Before Agreeing to Them
The American Subcontractors Association
PART III: Mediation
Chapter 15
Recipe for Success in Construction Mediation
John P. Madden
Chapter 16
Mediator Wisdom from the Experts
James Acret
Chapter 17
To Mediate or Not To Mediate: That Is the Question
Roger J. Peters and Deborah Bovarnick Mastin
Chapter 18
The Importance of Process Design to a Successful Mediation
Paul M. Lurie
Chapter 19
Some Guidelines for Effective Advocacy in Mediation
Howard D. Venzie, Jr.
Chapter 20
Closure Issues in Construction Mediation
Howard D. Venzie, Jr.
Chapter 21
Should Trial Counsel Represent the Client in Mediation?
Robert Korn
Chapter 22
The Expert's Role in Construction Mediation
Richard Lamb
Chapter 23
Construction Attorneys’ Mediation Preferences Surveyed - Is There a Gap between Supply and Demand?
Dean B. Thomson
Chapter 24
Innovations in Mediation andTechnical Mediation-
A New Tool for Resolving Complex Construction Disputes
Robert S. Peckar
Chapter 25
Mediating Construction Disputes- What Works and What Doesn't
Richard P. Flake and Susan G. Perin
PART IV: Partnering
Chapter 26
I Don't Trust You, But Why Don't You Trust Me?
Recognizing the Fragility of Trust and Its Importance in the Partnering Process
Jeffrey S. Busch and Nicole Hantusch
Chapter 27
The Benefits of Partnering
James H. Keil
Chapter 28
Partnering and the Management of Construction Disputes
Steve Pinnell
Chapter 29
Practical Tips for Effective Partnering
Bruce Johnsen
Chapter 30
Team Players-Not Partners!
"Partnering" Does Not Create "Partners"
Robert S. Peckar
Chapter 31
The Truth about Partnering-Limitations and Solutions
Allen L. Overcash
Chapter 32
Creating Long-Term Success Through Expanded "Partnering"
Gerald S. Clay, Ann L. MacNaughton and John F. Farnan Jr.
PART V: Arbitration
Chapter 33
Tips on Advocacy in Arbitration Before an Industry Arbitrator
Jorge R. Cibran
Chapter 34
Unilateral Selection of the Arbitrator
Robert J. MacPherson and Sarah B. Biser
Chapter 35
The ABCs of Writing a "Reasoned Award"
James R. Holbrook
Chapter 36
Innovations in Arbitration:
Improving the Presentation of Evidence in Construction Arbitration
Robert J. MacPherson, Richard F. Smith and Roy S. Mitchell
Chapter 37
Returning Arbitration to an Effective Process in Construction Contracts
William R. Joyce
Chapter 38
Comparing Cost in Construction Arbitration & Litigation
Susan Zuckerman
Chapter 39
Conditional Arbitration: A New Approach to Construction Arbitration
Steven A. Arbittier
Chapter 40
Stick With the AAA Arbitration Clause: The Best Chance for a Fair Resolution that Saves Time and Money
Ed Gluklick
Chapter 41
Neutral Corner-The Duty to Disclose
Neil Carmichael
Chapter 42
Arbitration vs. Litigation: An Unintentional Experiment
Jeffrey Cruz
PART VI: Small Claims Management
Chapter 43
Claims Management:
Using a Damages Accounting Form
Anthony E. Battelle
Chapter 44
Termination Cases
Anthony E. Battelle
PART VII: Large and Complex Case Management
Chapter 45
Now Is the Time to Control the Big Case
Allen L. Overcash
Chapter 46
Choosing the Right Mediator for a Complex Construction Dispute
Joseph C. Malpasuto
Chapter 47
Case Management under Revised Rules L-4, L-5 and L-6
Anthony E. Battelle
Chapter 48
Effective Mediation Techniques in Complex
Multiparty Synthetic Stucco Cases
C. Allen Gibson, Jr.
Chapter 49
Large, Complex Construction Disputes: The Dynamics of Multi-Party Mediation
Albert Bates, Jr. and L. Tyrone Holt
PART VIII: Dispute Resolution Boards
Chapter 50
A New Look at DRBs-AAA Offers New DRB
Roster and Protocol
Robert J. Smith and Robert A. Rubin
Chapter 51
Dispute Review Boards: Resolving Construction Disputes in Real Time
Robert J. Smith
Chapter 52
For Better or Worse:
The AIA Introduces the Initial Decision Maker in its Dispute Resolution Provisions
Steven B. Lesser and Belinda A. Bacon
Chapter 53
Construction Conflicts and Dispute Review Boards:
Attitudes and Opinions of Construction Industry Members
Kathleen M. J. Harmon
Chapter 54
Managing Dispute Resolution Options in the Construction Industry
Roundtable Discussion
James Acret is an arbitrator and mediator in Los Angeles. He serves on the American Arbitration Association’s roster of neutrals and is a member of its National Construction Dispute Resolution Committee.
