How to Pop the (Mediation) Question – a Mediator’s Perspective

Andrew J. Horowitz | HR Legalist

You are litigating a case and you want to raise the topic of settlement with the other side. It may be that your client has fatigue from spending money on legal fees and just wants to be done, you don’t like the way the litigation is going, or your client has a financial incentive to settle by year-end. You think mediation would be helpful as the parties are very far apart and there are difficult personalities on one side or the other.

You are afraid, however, to prejudice your position by making the other side think that you are desperate to settle. There is no court-ordered mediation on the horizon. How best to get the other side to the table?

You are right to be concerned. Parties and their lawyers are perceptive and will assume you are suggesting mediation because you are desperate to settle. There is never a way to avoid this entirely. Trying to your couch your desire to mediate in an excuse that you “want to see if it is possible to settle before both parties spend more money on litigation” will have limited effect, as parties see through this.

A better approach is to suggest to the other party that each side serve a settlement offer, and then both parties can evaluate whether each other is displaying sufficient desire to settle to make mediation worthwhile. This changes the focus of the question—instead of asking whether the other side will attend mediation because you are motivated to settle, you are effectively asking whether both sides are motivated to settle. It also forces the other side to deliberate seriously on their motivation to settle, rather than simply assessing your motivation. You are also, in effect, saying that you are only interested in attending mediation if both sides are motivated.

This also can increase the likelihood of settlement by ensuring that both parties are motivated and have reasonable expectations for mediation. In my experience as a mediator, the best predictor of success is whether both parties come to mediation voluntarily and with a genuine desire to make a deal. Conversely, mediation rarely works where one party has little motivation to settle and is only mediating because a court ordered it to mediate or because it thinks the other side will simply capitulate. This way, you avoid displaying desperation to the other side and reduce the likelihood that you will waste time and money preparing for mediation only to find that the other side is not prepared to compromise.

The Benefits of Mediating Complex Insurance Claims in a Post-Pandemic World

Mark Plumer | Policyholder Pulse

In my December 18, 2017, blog post, I wrote about “choosing the right path” to settle complex insurance claims and emphasized the benefits of private structured negotiation, a type of negotiation undertaken without the assistance of mediators. At that time, I identified mediation as “a good potential next step.” Since 2017, the world has suffered through a pandemic, and it has become apparent to me that private settlement discussions can sometimes become discoverable in litigation, even if compromise communications are not permitted in evidence. In the wake of these developments, what I previously counseled as a good potential second step is now in my view the proper first step in most cases. Notwithstanding, while mediation has many benefits, its efficacy depends on identifying the right mediator, selecting the right timing and format (now, likely virtual), and making sure that any settlement reached in mediation does not later unravel.

Why Mediation May Now Be the Superior Process
Some courts properly recognize that public policy favors allowing parties to communicate openly in settlement discussions. But there is a split of authority: other courts have focused instead on the broad reach of fact discovery and have concluded that settlement discussions are relevant and not privileged. These courts note that Federal Rule of Evidence 408 and analogous state rules prohibit the admissibility of compromise communications at trial but may not bar their discoverability for other purposes, if relevant. A compounding problem is that parties negotiating settlement may agree among themselves that their settlement communications are not discoverable, but this does not bind third parties, nor does it prevent a third party not part of settlement negotiation from seeking access to settlement communications if relevance otherwise can be demonstrated, regardless of whether confidentiality agreements were entered into by the negotiating parties. Since many courts apply a broad relevance standard, private negotiations present risk in any litigation that may follow.

To avoid derailing or chilling a settlement dialogue, policyholders and insurers can erect protective barriers. In multiparty cases, all parties can agree that settlement communications are not discoverable either through a case management order or by some other form of jointly proposed court order. In addition, many states have enacted the Uniform Mediation Act, which legislates that mediation communications are privileged and are not subject to discovery. (See, e.g., Ohio Rev. Code § 2710.03.) If parties are domiciled in multiple jurisdictions—as is usually the case—they can choose the law of any state to govern their mediation, and the mediation privilege should apply whether or not litigation is pending.

The pandemic also has changed the calculus. Whereas principled face-to-face meetings between policyholders and insurers have the potential to be very productive, the pandemic has made this harder. For health reasons, many parties do not want to travel or to be in the same rooms together. It is unclear if and when this will change. Virtual proceedings are harder without a neutral, as no party wants to cede control to the other to lead the process and, for example, to control the assignment and management of break-out rooms. Mediation allows a neutral to oversee a confidential virtual proceeding. Remember that mediation is non-binding, far less expensive than litigation (though it can be expensive too), is designed to be quick (though it is sometimes slow), and can be structured in whatever way the parties and mediator determine is most likely to yield a successful outcome. The only limitation is the parties’ and mediator’s creativity.

Mediation Considerations
A mediation that is not well conceived and executed is not likely to succeed. If parties commit to spending the time and effort to engage in a mediation process, they should do so thoughtfully. Assuming that a mediation has been agreed to, parties should consider the following procedural elements:

  • Consider the Timing. The timing of a mediation may be imposed or voluntary. Some insurance policies require mediation before a lawsuit is filed. Some jurisdictions (or individual courts) require mediation before trial. Where the decision is voluntary, parties should communicate about the timing. Mediation at the outset of discovery in a complex case may not be as effective as mediation after the close of fact or expert discovery. On the other hand, players with a small financial stake may wish to mediate before incurring the costs of discovery. The facts matter, and individual circumstances will likely dictate the most reasonable decision. All of this can be sorted out if the parties are communicating.
  • Select the Right Mediator. Choosing a mediator is like choosing a car. Some will simply get you to where you are going. Others have accessories that may (or may not) matter. Facultative mediators facilitate negotiations. Evaluative mediators analyze the facts and express opinions on the strength of the parties’ respective arguments. Good mediators do both. There are mediators who are in high demand—usually, because they are good—but who may not be able to focus on your matter. There are mediators who have relationships with specific insurers’ senior management. There are mediators with a deep knowledge of a particular jurisdiction’s law. There are mediators with deep knowledge of a specific type of insurance claim. There are mediators who used be judges. There are mediators who used to be policyholder lawyers. There are mediators who used to be insurance executives. There are mediators who one side or the other simply will not agree to. One size definitely does not fit all. Be aware of the pros and cons and choose wisely.
  • Choose the Right Format. Much has recently been written about the advantages and disadvantages of virtual mediation. The clearest advantage to virtual mediation today is that few other options are available. It remains to be seen whether virtual mediation ultimately is as productive as a face-to-face meeting where principals (or counsel) can speak to each other directly in a hallway to resolve a case at the pivotal moment. Regardless, parties clearly recognize that courts are backlogged with criminal cases, and virtual mediations are an attractive alternative to waiting years to resolve a case through trial. Virtual mediation can be easier to schedule, especially when working with good mediators and multiple parties, including experts, from diverse geographies. Virtual mediations are cheaper as well, and virtual mediations can more easily be started, stopped, and then restarted if phasing will be helpful.
  • Assure that Any Agreement Reached Gets Finalized. Assuming a successful result, make sure that a settlement “in principle” actually constitutes a meeting of the minds. The best time to do this is at the mediation, when the mediator is there to assist. Waiting until after the mediation concludes to confirm terms may result in delays, disagreements, or worse. Take the time to finish what you start by agreeing to all material terms before the parties leave the room.

Keeping these various factors in mind is key to ensuring a successful mediation process—one that is cohesive, thoughtful, and well-positioned to lead to a favorable outcome.

Mediation 101 – “Help me Help You” Musings of a Mediator and an Attorney

Kent B. Scott, Esq. and Cody W. Wilson, Esq. | Babcock Scott and Babcock

Introduction.

A construction dispute that began after a cave-in of a large resort roof caused $5,000,000 in damages eventually resulted in a lawsuit naming fifteen parties.  The case was in litigation for six years and generated $900,000 in legal fees, due in large part to the taking of ninety fact and expert witness depositions.  Another twenty depositions remained to be taken.  Two settlement conferences with the Court had failed to bring the parties to an agreeable resolution.  A trial date had still not been scheduled.  The fifteen parties then agreed to try private mediation and were able to schedule a mediation conference the same month.  The parties agreed on an attorney with significant construction litigation experience to serve as the mediator.  The case settled for a six-figure sum after three days of mediation.  The mediation fee was $7,100.  The parties were all satisfied with the outcome.   And of critical importance in the construction industry, their relationships remained intact. 

Mediation can serve a range of purposes, including giving parties a chance to define and clarify issues, understand each sides perspective, explore solutions and ultimately arrive at a mutual agreement.  The advantages of mediation can include speed, privacy, choice of the mediator, expertise of the mediator, informality and cost.  On the other hand, litigation is often lengthy and expensive.   Construction disputes can be highly varied.  They can involve defects in workmanship, delay in completion, cost overruns, terminations, environmental harm and injury to workers among other things.  Despite these challenges, the construction industry has long been a leader in the use of alternative dispute resolution. 

This article focuses on the critical issues that must be faced and addressed for a successful mediation. In order for a mediation to have its best chance to succeed, both the mediator and the participating parties need to work together in “helping” each other achieve a resolution that is better than litigation. An awareness of how to “help” one another throughout the mediation process is fundamental in building a foundation for a successful mediation

Is There a Recipe for a Successful Mediation?

Mediator Scott: The success of a particular mediation is mainly determined by the parties.  It is their process. They are in control of the ultimate result.  However, there are some common elements that make the mediation more likely to succeed. 

  • Work with your client to discuss objectives and interests. Let him or her know what the process and procedure will be like.
  • Discuss with your client options that may be pursued if the mediation is not successful and the resources required to pursue those options.
  • Select a mediator with the skills, knowledge and style that fits the dispute and personalities involved in the mediation. 
  • Bring the people with knowledge of the dispute and the authority to settle.
  • Counsel should exchange enough information that would allow them to understand the positions and the perspectives of the other.

Attorney Wilson:  The mediator, attorney and client should work together to create a recipe that will increase the likelihood that mediation will be successfully resolved.

  • Pre-mediation preparation with the mediator will go a long way to give you your best chance for resolution.
  • Discuss your client’s objectives and interests with the mediator.
  • Be committed to making the mediation work. Get your client committed. Don’t give up on the process too early.  Explore all available avenues and options.

How do We Get Started?

Mediator Scott: The attorney’s role in preparing the client for mediation is essential Design a process that will best help the parties to be comfortable, feel safe and be assured that their concerns and confidences will be respected.

Selecting the correct mediator for the issue Attorneys, talk to your clients about what to expect and how to act. Discuss options for settlement.  Also talk about what the alternatives would be if the matter is not settled, including the requisite resources to resolve the matter through the traditional litigation process.

Attorney Wilson: Determine how much information should be presented in your mediation position statement. What kind of an opening session do you want: Opening statements followed by a question and answer exchange?  Power-point presentation? “Meet and greet” followed by recessing into caucus groups? Moving directly into caucus? The attorney should be searching for his client’s concerns, needs and objectives, taking into consideration the money, time and emotion the client will be spending should the mediation not succeed.

The Pre-mediation Conference

Mediator Scott: Hold a brief pre-mediation conference to discuss the time, place and the “ground rules” for the mediation. The mediator will ask the attorneys to submit a position statement. Should this statement be confidential or should it be exchanged with opposing counsel?  If the statements are exchanged, should separate confidential statements be submitted? Carefully consider what essential facts, law and points will best assist the mediator in advancing the client’s interests.  If the case is in litigation, consider furnishing the mediator with the key pleadings and other filings.

Attorney Wilson:  Treat items such as client objectives, range of offers and a discussion of strengths and weaknesses confidentially.  Hybrid statements are often used where the facts, law and points of argument are shared by counsel, and other more confidential and sensitive matters are provided for the mediator’s eyes only. 

Confidential Pre-mediation Conferences

Mediator Scott: Most mediators consider it helpful to be informed of any potential hurdles or difficulties..  Discuss with the mediator what has kept the parties from settling the case thus far.  Inform the mediator of any personality characteristics of the parties that would assist the mediator in working with them at the mediation.  The quality and character of the relationship that opposing counsel have with one another is also important for the mediator to know.  Think outside the box. Give some thought to providing the mediator with your preferred version of the settlement agreement.

Mediation Preparation

Mediator Scott:  Who should come to the mediation?  More is not better. Plan on bringing the people who know the facts and have the authority to get the dispute resolved.  It is imperative to bring the decision maker.  If the decision maker is not able to attend in person, have him or her available by phone, or have the entity send a representative.  In any event, the attorneys and the decision maker should work hand in hand in preparing for the mediation and in establishing mediation objectives and strategies. 

Attorney Wilson:  A word of caution: Oftentimes company employees most involved in the dispute focus on protecting their personal turf.  Counsel and the decision maker for the client will need to address how to work with an employee who has an interest or an “agenda” that doesn’t fit in with the client’s objectives for resolution.

Mediator Scott: Should you bring experts?  Generally, clients and their attorneys should ask experts to help in the preparation efforts.  On occasion, experts may use the mediation process as a means of advancing their own positions, which can complicate and add an additional level of advocacy to the mediation process.  If an expert is going to come to the mediation, discuss what role the expert will play throughout the process.  

Attorney Wilson: Work with everyone who plans on attending the mediation and establish what their role will be. Remember to remain flexible and avoid “drawing a line in the sand.”  Trust, and work with the mediator to consider all possible options.  The mediator will have the best sense as to what it will take to achieve closure.  The mediator is the only person who has been to all of the caucuses. Ask questions as to the mediator’s impressions and do a little “reality testing” of your own with the mediator while in your private caucus session(s). 

Mediator Scott:  Bring all documents that were provided to the mediator or exchanged with the other side. Also consider preparing summaries, graphs and charts which illustrate key points. These items are useful in the opening statement or in private meetings with the mediator. Finally, bring any specific information requested by the mediator.

The Mediation

Mediator Scott:  Every mediation is different and unique.  Seek a format that is best suited for the particular dispute.  Generally, the mediation is conducted in four stages: Opening, Private Caucuses, Breaking through Impasse and Disposition (Settlement, Suspension or Termination). 

Attorney Wilson: I recommend a short “Meet and Greet” session and then break into caucus. All information should be exchanged by this point.  If not, we attorneys have not done our job.

Mediator Scott:  I also prefer the “Meet and Greet” format.  I encourage  an open exchange of information with counsel including an exchange of mediation statements. Any confidential or private matters can be discussed with or presented to me prior to the mediation.

Attorney Wilson: The private caucuses have three functions: information gathering, negotiation and consensus building. It is important to the success of the mediation process to have a direct dialogue with the mediator about the strengths and weaknesses of a case. 

Mediator Scott: The mediation process eventually shifts from information gathering to negotiation.  Every client undoubtedly wants to know who makes the first move in mediation?  Again, the mediator is the only person who has been in all of the caucuses with all of the parties. Work with the mediator to come up with a “negotiation strategy.”

Attorney Wilson: Impasse is inevitable. Discuss impasse strategies with your client and the mediator in preparing for the mediation and during the caucus sessions.  The mediator may decide to bring the parties or counsel together for direct negotiation.  Always trust the mediator.

Mediator Scott: The mediator may ask legal counsel for permission to speak with the clients out of the presence of their counsel.  This is a risky proposition and I have only permitted this when I have had a sophisticated client.

Where an impasse is evident, I discuss what is likely to happen if a settlement is not achieved. I want everyone to always be aware of their alternatives if the mediation fails and weigh those alternatives in view of what they have thus far achieved.  At this point we make an effort to “brainstorm” and create new ideas, or even add a new twist to old information that would assist in overcoming an impasse. Sometimes, however, the circumstances call for a suspension, recess or termination of the mediation process.

Settlement

Attorney Wilson:  When the parties reach a settlement, no one leaves until the settlement is memorialized in writing.  I often bring with me a thumb drive with a blank generic mediation agreement.   Without a written memorandum setting out the material terms of the resolution, the courts have no means of enforcing the settlement.[ii]   

Mediator Scott:  I orally summarize the main terms of the resolution to counsel and their clients.  I ask the attorneys to prepare a draft summary of the settlement covering all material points, which the parties and attorneys sign. I prefer a detailed settlement agreement, as this document is legally binding and enforceable in court.  

Attorney Wilson: Settlement agreements often contain a dispute resolution mechanism, such as arbitration or mediation.  I like to include terms appointing the mediator or a named third party to handle any disputes over the interpretation of the mediation settlement agreement.      

Suspension and Termination – The Mediator’s Proposal          

Mediator Scott: If the parties do not agree to a settlement, I review the progress the parties made during the mediation and advise them of their options, such as providing one another with additional information, meeting again later for further mediation, going to arbitration or going to court. I always follow up with counsel a couple of weeks after the mediation to determine if there would be any merit in further discussing settlement.  I sometimes ask the parties if they would consider me giving them a “Mediator’s Proposal” that would address all the areas of the dispute. All post mediation discussions or proposals remain part of the mediation process and are therefore confidential.

Mr. Wilson: After a suspended or terminated mediation, the parties retain their right to settle, resume mediation, arbitrate or litigate.  Oftentimes, the parties decide to take a break from mediation and then reach a settlement on their own or resume mediation.  Otherwise we proceed to litigation.   

Client Follow-up       

Attorney Wilson: Where a resolution is reached at the mediation, I follow up with the client.  The day after mediation, some parties experience “settlement remorse. “ The client has invested so much into advancing the dispute, and may feel unfamiliar with his or her new found condition. I remind the client of the reason he or she decided upon resolution.  I point out that the client is now free to use his or her time to attend to the affairs of the business.  After all, the client is better at making money operating its own business than spending time preparing for or attending court or arbitration. 

Enforcing the Settlement

Mediator Scott:  No party is bound by anything said or done at the mediation unless a written settlement is reached and signed by all necessary parties.[iii]  A signed agreement reached during mediation is enforceable in court just like any other settlement agreement.  Because a court will look to the face of the document, it is important to spend quality time and effort in drafting the mediation settlement agreement. The court cannot take testimony from the parties, counsel or the mediator as to the interpretation of the settlement agreement.  There are statutory exceptions “where the interests of justice outweigh the parties’ need for confidentiality.”  Courts often require a high threshold of proof to overcome the confidentiality protection afforded by mediation.[iv]

Conclusion

“Help me help you.” Mediation is an effective process that helps parties settle disputes.  Mediation is appropriate for most commercial business disputes.  It has the advantage of allowing the parties to choose and control the process and the outcome of their dispute rather than have it determined for them by a judge, jury or arbitrator.  

“Help me help you.” Attorneys and their clients can work together to design the mediation process they plan on using.  The parties can select the mediator they want to assist them in resolving their dispute and discuss with that mediator the means and methods by which the mediation is to be conducted. 

The mediator may not have much in the way of authority to impose a resolution upon the parties; however, a cooperative work effort among the mediator, counsel and parties is the recipe for creating resolution.  Happy mediating to all!


[i] The authors would like to acknowledge the assistance of Andrew Berne in the editing of this article. Mr. Berne is a third year student at the J. Reuben Clark College of Law and is currently a clerk for the Law firm of Babcock Scott & Babcock.

[ii] Reese v. Tingey Construction, 2008 UT 7, ¶ 12-14, 596 Utah Adv. Rep. 45.

[iii] Id.

[iv] Reese v. Tingey Construction, 2008 UT 7, 596 Utah Adv. Rep. 45; Wilmington Hospitality, LLC v. New Castle County, 788 A.2d 536 (Del. Ch. 2001); Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928 (2d Cir. 1979); Ryan v. Garcia, 33 Cal. Rptr. 2d 158 (Ct. App. 1994); Lyons v. Booker, 1999 UT App. 172, 982 P.2d 1442; Nat’l Union Fire Ins. Co. of Pittsburgh v. Price, 78 P.3d 1138 (Colo. Ct. App. 2003); Gordon v. Royal Caribbean Cruises Ltd., 641 So. 2d 515 (Fla. Dist. Ct. App. 1994); Cohen v. Cohen, 609 So. 2d 785 (Fla. Dist. Ct. App. 1992); Hudson v. Hudson, 600 So. 2d 7 (Fla. Dist. Ct. App. 1992); Vernon v. Acton, 732 N.E. 2d 805 (Ind. 2000); Spencer v. Spencer, 752 N.E.2d 661 (Ind. Ct. App. 2001).

To Skip Or Not To Skip The Opening Statement In Mediation

Peter S. French | Taft Stettinius & Hollister

More often than not, lawyers opt out of opening statements in mediation for a variety of reasons. Common rationales include: opening statements will only heighten emotions and negatively impact negotiations; the parties already know the key issues and mediation time is better spent on negotiating settlement terms; and we don’t want to disclose our litigation strategy before depositions or a decision on one or more issues.

When opposing counsel suggests parties should opt out of opening statements in mediation, a common reaction (that I am guilty of) is to agree. Opening statements require substantial time and attention, including rehearsal, and the presentation itself can be stressful. By skipping the opening, lawyers can avoid that pressure and preparation. Taking a pass is an easy out. However, does that make it a good idea? Should it be the rule, rather than the exception? Is forgoing the opening statement in the client’s best interests?

My personal view and experience is, in most circumstances, delivery of an opening in mediation is critical to the success of the mediation. By giving the opening, you are demonstrating a level of trial readiness and confidence in the merits to the opposing parties and the mediator. You’re also educating the mediator about the strength of your client’s position and the seriousness of the matter. In addition, you’re arming the mediator with information that will empower them to make inquiries while caucusing with your opponents. Your opponent’s opening also will provide invaluable information on what they believe the evidence will be and how it supports their position on the merits. This, moreover, may be the only time before trial the opposing party hears directly from you on your client’s view of the case without it being filtered through their attorney. Finally, your client will know they’re receiving competent service, that you are there to protect their interests and understand the strengths and weaknesses of their case.

So, how do we avoid the oft-expressed downside to openings in mediation?

First, use technology. A PowerPoint presentation allows your audience to visualize what the evidence will be and can be somewhat of a shield between you and your audience, as your opponent’s eyes and attention will be on the presentation and not necessarily you. If you have the benefit of critical deposition testimony, consider inserting key passages verbatim or playing video clips. If the judge has issued a ruling on one or more key issues, quote the judge. Using a court ruling or your opponent’s words to establish your client’s case is often compelling and difficult to counter.

Second, stick to the purpose of an opening statement — focus on what the evidence will be and how that evidence establishes each element of your client’s claims or defenses. Unlike argument, evidence is something every party must face, and that should be considered in determining the terms of a fair and equitable solution. Evidence is a source a mediator can use to their client’s advantage to influence the other side regarding its settlement position during mediation caucuses. Evidence is fundamental information that can allow a mediator to determine whether to use one or more mediation tools — such as bracketed bargaining or making a mediator’s proposal — if it appears the parties are at or near an impasse. Having to face the evidence should never provide an excuse for any party to become emotional or threaten to end a negotiation.

Third, avoid opening content that uses adjectives or any unnecessary characterizations of the evidence that could frustrate the goal of achieving the best settlement terms possible. An overly aggressive opening statement usually evokes an emotional reaction by the other side. Avoid statements that may signal an unwillingness to compromise or your client may not intend to mediate in good faith.

Finally, consider ending with a settlement proposal that includes compromise terms and an explanation as to why they’re fair. Doing so will arm your mediator with a starting point for discussion in the other room and should minimize unintended emotional response from the other side.

You should also prepare in advance for the opposing party’s opening statement. Identify key issues your client must be prepared to face and develop a strategy to counter points made by the other side. Ready your client to sit quietly through the opposing opening statement. Assure your client you’re prepared to address each issue raised. Identify weaknesses in your client’s positions so there are no surprises. Consider alerting your client to the fact that emotion may signal weakness and should be avoided during mediation.

Circumstances exist that merit a decision to pass on the opportunity to present your client’s opening position. Some examples include:

Complex commercial cases involving multiple sophisticated parties, where the merits have been fully briefed and argued but not finally decided.

Family law matters.

Personal injury matters involving serious permanent injury or death.

Probate and estate disputes involving family members.

When next you are faced with the opportunity to opt out of making an opening presentation in mediation, consider the many important benefits to your client, the mediator and the process. In most instances, opening statements provide far more value to the process than not.

Eight Tips for Mediating High-Profile Construction Disputes

Patricia Thompson | JAMS

Large-scale global construction disputes often present a complicated mix of factors, such as publicity-associated risks, government oversight, huge project size, a large number of implicated parties and momentous damage issues. At the International Association of Lawyers (UIA) 29th World Forum of Mediation Centres on June 24, 2021, I had the opportunity to moderate a conversation on this topic with panelists Steven Nelson of Texas, Professor Stefan Leupertz of Germany and Christopher Miers of the United Kingdom. Our discussion included perspectives from practitioners and neutrals who have experience helping to resolve conflicts involving some of the world’s most recognized buildings and sites. We offered a host of valuable lessons for neutrals, counsel and parties to consider when negotiating highly visible and newsworthy construction disputes.

I have distilled our discussion into eight key highlights, tips and takeaways:

  1. Build trust and understanding through robust pre-session preparation with the mediator.
    The mediator and parties should work together in advance of the mediation to devise an agreed-upon process to exchange information—if necessary, in a series of meetings or conferrals—so that everyone will trust the settlement process and understand one another’s positions on the technical, insurance, legal and damages issues relevant to settlement.
  2. Understand “big picture” issues and ensure key decision-makers are involved, engaged and present.
    The mediator should determine, as early in the process as possible, the identities of the key decision-makers, whether there are entities who are not “at the table” but who need to be involved, which other disputes may be implicated by the settlement of this one and how to include all necessary issues and persons in the negotiations at hand.
  3. Set expectations for a full mediation process of multiple and ongoing conversations and negotiations.
    It is important that the parties and mediators understand that in these types of disputes, mediation will most likely not be a one-time event. It may involve a series of sessions, each for a particular purpose, such as educating the parties or mediator, establishing ground rules and addressing high-priority issues.
  4. Clearly explain and respect confidentiality parameters, and use curated caucuses to allow for frank exchanges.
    Parties need to know that they can openly express their concerns to the mediator and the other parties, and that they won’t be disclosed to anyone outside the “room.” This may involve putting parties who have similar interests into groups so that they can speak more freely with each other. The involvement of governmental overseers or decision-makers requires special considerations and confidentiality.
  5. Leverage focused sessions with technical experts to hone in on areas of agreement and difference.
    The idea of splitting participants into groups can also work well if the mediator brings together all of the technical experts involved in the dispute—perhaps without the parties or counsel present—so that they can discuss with each other and with the mediator where consensus can be obtained and better understand what remains in dispute or unknown.
  6. Use the neutrality of mediator proposals to mitigate any perception of capitulation.
    Mediator proposals can be especially helpful to overcome situations where corporate or governmental representatives present at the mediation may not have the authority to bind the party they represent, so they must make recommendations to others who have higher authority and may be sensitive to public criticism. The mediator can “take the blame” for the substance of the proposal, which then saves face for those in a decision-making hierarchy who may agree with and recommend that proposal, but without implying that they have personally concluded that the party they represent is guilty or at fault.
  7. Turn to additional neutral assessments to bolster a settlement’s fairness and inoculate against any appearance of damaging admissions.
    Another way to broach the same sensitivities is for the mediator to arrange for non-binding evaluation by another neutral or neutral panel, or hold a mock jury trial, based on an expedited presentation of the parties’ evidentiary positions. This way, the parties can rely on this independent evaluation as a basis for settlement, without appearing to admit any fault.
  8. Establish standing neutrals who are on call to address issues in their infancy in order to avoid full-blown disputes.
    Finally, the panel agreed that an excellent way to resolve disputes on high-profile projects is to avoid public disputes altogether through use of standing neutrals, similar to or in the form of dispute resolution boards. These experts in construction contracting, the construction techniques of the project and/or the legal obligations of the parties can be retained at the outset of the project to essentially stand by to resolve issues as they arise, as well as meet regularly with the parties, keeping them informed of the progress of the project and the issues under discussion on a real-time basis. They also can provide a ready forum in which parties may address disagreements or concerns at their infancy, when they can most easily be resolved.