Mediation

Mediation and Arbitration 101 for Architects, Engineers and Contractors

By Gary L. Cole AIA, Esq.

[Gary L. Cole AIA, Esq. is Chica­go-based Illi­nois and Flori­da-licensed attor­ney and Illi­nois-licensed archi­tect. He prac­tices con­struc­tion law, is a con­struc­tion and com­mer­cial arbi­tra­tor and medi­a­tor, and is an his­toric preser­va­tion attor­ney and expert wit­ness and con­sul­tant.  He can be reached at www.garylcolelaw.com]

With civ­il litigation’s ris­ing costs, medi­a­tion and arbi­tra­tion are grow­ing in pop­u­lar­i­ty as poten­tial­ly quick­er and more cost-effec­tive alter­na­tive dis­pute res­o­lu­tion forums. Archi­tects, engi­neers and con­trac­tors who incor­po­rate well-con­sid­ered medi­a­tion and arbi­tra­tion claus­es into their con­tracts and ser­vice agree­ments may have an advan­tage over those who do not, and, who lat­er find them­selves embroiled in cost­ly and pro­tract­ed litigation.

Medi­a­tion and arbi­tra­tion, how­ev­er, dif­fer fun­da­men­tal­ly in their approach­es and some con­flicts may be bet­ter resolved in one forum over the other.

Medi­a­tion Basics 

Broad­ly speak­ing, medi­a­tion is a more infor­mal dis­pute res­o­lu­tion process than arbi­tra­tion in which a neu­tral par­ty – a medi­a­tor – assists two or more par­ties in reach­ing a nego­ti­at­ed set­tle­ment on their own.

Medi­a­tion is pri­vate, con­fi­den­tial and gen­er­al­ly non-bind­ing; unless a set­tle­ment agree­ment is entered into by the dis­put­ing par­ties. Many con­tracts, espe­cial­ly design and con­struc­tion agree­ments, con­tain require­ments that par­ties attempt to resolve any dis­putes through medi­a­tion as a pre­req­ui­site to purs­ing arbi­tra­tion and/or litigation.

Medi­a­tion can occur through a process known as facil­i­ta­tive medi­a­tion, in which parties …

BIM in Construction Arbitration and Mediation?">Using BIM in Construction Arbitration and Mediation?

By Gary L. Cole AIA, Esq.

Inter­est­ing arti­cle HERE, and I agree, BIM has unique pos­si­bil­i­ties in arbi­tra­tion and medi­a­tion as an evi­den­tiary track­ing tool, but in dif­fer­ent ways.

In con­struc­tion arbi­tra­tion, com­par­ing a con­trac­tu­al scope of work — includ­ing one that evolved dur­ing a project — with the work com­plet­ed might pro­vide the par­ties and the arbi­tra­tor with a more objec­tive and empir­i­cal mea­sur­ing stick for com­par­ing the par­ties’ intent with a project’s completion.

In con­struc­tion medi­a­tion, espe­cial­ly in “eval­u­a­tive” medi­a­tion, the same holds, but the BIM find­ings also pro­vide the medi­a­tor with more tools to bring the dis­pute to set­tle­ment, main­ly when those find­ings are used with the mediator’s sum­ma­ry of the strengths and weak­ness­es of each par­ties’ case, as pre­sent­ed to each par­ty in con­fi­den­tial ex parte discussions.

How­ev­er, in both arbi­tra­tion and medi­a­tion, using a tool like BIM most effec­tive­ly still requires that coun­sel for the par­ties, the arbi­tra­tor, and the medi­a­tor have the tech­ni­cal exper­tise to under­stand the kind of evi­dence BIM pro­vides – and the abil­i­ty to give that evi­dence the weight it does or does not deserve, depend­ing on the dispute.