Effectively Dealing with Construction Disputes

As a mediator myself, I often advocate for mediation as an effective tool to help resolve construction disputes.  Due to the high number of construction projects throughout the region and the long list of individuals potentially involved in each project, construction disputes are quite common.  Realizing this, many construction companies, contractors, subcontractors and other parties include or request a mediation provision in their contracts.  Others simply suggest it after a problem arises.

Mediation is an alternative to dragging a case out for months or years by having to wait on a trial.  Mediation often helps resolve issues that develop in the construction industry regarding performance or payment.  It is much faster and affordable than litigation.  Mediation also takes into consideration that when a contract is terminated, both parties often pay the price.  New teams may need to be hired for a higher price point while the old one loses out on the expectation of income and possible future projects.

When mediation is entered into voluntarily and in good faith, it can be a positive experience for all parties involved.  More often, parties are able to resolve their issues in a professional manner.  Many construction disputes involve interpersonal and emotional issues.  In court, these issues may not be considered relevant, or the parties’ attorneys may advise their clients not to bring up such information.  However, by addressing these issues, the parties can confront them directly.  This allows them to then focus on how to resolve the current dispute in an amicable fashion.

While a judge can find that one of the parties is the “winner,” the remedies are usually limited.  Often, the party may only receive money damages.  Filing bankruptcy or avoiding payment can make it more difficult for the “winner” to actually win anything.  Mediation gives the parties the opportunity to come up with more creative solutions.  If payment is an issue, the parties may agree to a payment plan.  They can also agree on new deals or exchange services.  The possibilities are only limited to the creativity of the parties and mediator involved.

Even if the parties cannot find an agreeable solution to the current issue, most people feel that mediation is still a valuable process.  A mediator is a person trained in conflict resolution skills.  He or she helps the parties communicate better.  Parties may adapt the skills and techniques demonstrated during mediation.  Additionally, the parties often acquire a better understanding of how the other is thinking.   Even though the parties cannot bring up in court the information discussed during mediation due to confidentiality, the information learned at the mediation can help the parties incorporate a legal strategy that takes this information into consideration.

Additionally, mediation may help the parties develop the skills and respect necessary that may help them settle the case down the road, even if they do not settle on the day of mediation.   Therefore, mediation acts as a win/win for the parties.  If the case is resolved, the parties save the time, money and frustration associated with litigation.  If it is not settled, they still gain valuable insight into the other party’s perspective on the underlying cause of the legal issues.

Achieving Optimum Results in Mediation

Mediation is an opportunity for two or more parties to a legal dispute to address legal issues, enhance communication and work toward a positive resolution of the dispute. To increase your chance of achieving optimum results, consider taking the following steps.

Ensure Decision Makers Are at the Table

Make sure that you schedule your mediation session in such a way that all of the decision makers can be present at the same time. This provides a number of benefits. For the plaintiff, this allows the actual wronged party to present his or her authentic representation of what led to the legal dispute. This can be quite therapeutic for a plaintiff who may never have the chance to directly address the defendant through litigation. For the defendant, this allows claims adjusters, employers or other affected parties to be part of the ultimate resolution of the case. Additionally, it prevents the absent decision maker from vetoing an agreement at the last minute after hours of good faith negotiation.

If physical presence is not possible, consider modern ways to achieve a similar result through a conference call, Skype, videoconferencing or similar technology.

Prepare Your Client

Before mediation, review the facts of the case and the legal issues involved so that your client will be prepared for mediation. Ask your client to tell you the story about what led to the current conflict in his or her own words. If there is information that needs to be emphasized, let your client know ahead of time. Get your client to acknowledge weaknesses in the case and discuss ways around them. Review evidence that helps substantiate your client’s version of events and prepare this information for the mediation session. New information in the case often gives the other side a chance to reevaluate legal positions and potential settlement value while saving face. Discuss your negotiation approach before the mediation session so that your client has a better understanding of potential offers that may be made, as well as the ability to see when you are in negotiation mode.

Explain the Process of Mediation

It is important for your client to understand the process and goals of mediation and how these differ from trial before a judge and/or a jury. Mediation is guided negotiation that serves as an alternative to public, expensive and time-consuming litigation. The traditional remedy in litigation is monetary damages. However, mediation allows the parties to structure their own agreement, so remedies do not have to be limited only to money damages. For example, the defendant may agree to institute a new policy or provide a recommendation letter for a former employee as part of the agreement.

Demonstrate Empathy

Even though mediation concerns legal issues, it can still be fraught with heavy emotions. A plaintiff may feel wronged after suffering a physical injury. A defendant may feel attacked with an impending lawsuit. As the attorney, it is important that your client feels like you understand his or her plight and that you are on his or her side. Addressing the emotional aspect of the case allows all parties and their counsel to humanize it. Once a client feels heard, he or she may be more willing to negotiate from a reasonable standpoint.

Prepare Yourself for Mediation

Attorneys should prepare for mediation to the same level as going to trial. Bring to the mediation copies of the police report, medical records, medical reports, medical bills (paid and not paid), pictures of the damaged vehicles, witness statements, personnel records (in an employment dispute), and legal research. The attorney can use this information to help educate the Mediator and opposing counsel and decision makers.

Choosing a Mediator for Personal Injury Mediation in Houston TX

Selecting a proper mediator for personal injury mediation in Houston Texas makes reaching settlement much more likely. Whether you represent the plaintiff or the defendant in a personal injury case, there are qualities you (and opposing counsel) should seek in a mediator. As you prepare for personal injury mediation in Houston Texas, be sure to keep the following characteristics in mind.

First, do not fret over whether the mediator has primarily represented plaintiffs or defendants in previous practice. In many cases, it is beneficial to use a mediator with experience on the “other” side of the claim. These mediators are able to offer additional insight into the strengths and weaknesses of the case, and may be able to assist in anticipating the opposing side’s arguments.

Select a mediator who mediates cases often. Although most mediators complete similar training before they earn their certifications, those who mediate frequently will be more experienced in the nature of personal injury claims and the emotions they involve.

Similarly, it is also important that the mediator has reached settlement in a majority of personal injury cases. A high rate of settlement speaks volumes as to the mediator’s negotiation style and ability to overcome perceived impasses.

Consider your clients’ personalities as well when seeking a mediator. Would your client fare better with a mediator that allowed them more leeway in making decisions, or would a mediator that discloses what a judge may rule be better?

With these tips in mind, you will find an excellent mediator.

Preparing for Contract Mediation in Houston TX

As with most legal processes, thorough preparation is key to success. Although most attorneys do not feel that mediation requires the same level of preparation as if they were conducting a trial, the reality is that mediation often provides the chance to settle the case on a final basis, so taking preparation seriously is a necessity. Planning well for contract mediation in Houston Texas makes settlement much more likely, as the attorneys are better prepared to help their clients negotiate and make an informed decision about their case. As attorneys approach contract mediation in Houston Texas, they should take certain steps to prepare.

The approaching mediation session may be the hundredth for the attorneys, but it is likely the first for the clients. Many attorneys underestimate the importance of preparing their clients for mediation. Most clients experience anxiety about litigation and legal claims because they do not know what to expect. Attorneys should meet with their clients prior to mediation and walk them through what to expect during the session. During mediation, the clients will be able to focus on settling the case, instead of wondering what will happen next.

Attorneys should also take the time to review their case file prior to mediation. In cases that have been active for some time, the attorneys may have forgotten a few facts or events that may be relevant during mediation. Another good practice is to create a separate mediation folder and place necessary documents in it for quick reference during mediation.

Construction Mediation in Houston TX Save Clients’ Money and Time

Attorneys are well aware that most clients have little idea as to how much litigation can cost—and how frustrated they become when these costs and expenses begin adding up. Unfortunately, many clients think that attorneys want to make as much money as possible, no matter how it may impact the client. However, by explaining the benefits of construction mediation in Houston Texas, attorneys will alter these clients’ perception of attorneys while saving them time and money in their cases. In fact, attorneys should explain the benefits of construction mediation in Houston Texas early in their cases.

Whether attorneys represent plaintiffs or defendants in construction claims, their clients will save thousands of dollars in legal fees and court costs if they mediate and settle their case prior to trial. Defendants will save on the hourly rates they have to pay their attorneys, as the case may be significantly shortened. Both parties will save on the expenses involved with trial preparation, such as hiring experts and preparing exhibits. Plaintiffs may also be able to negotiate a better settlement than they may receive in court for various reasons.

Clients must also be made aware of how long construction cases may take to reach the trial phase. In many jurisdictions, it can take at least a year or two to schedule a trial date. Although many clients demand their day in court, they may change their minds once they realize they may be able to finalize their claims much earlier with construction mediation.