Construction Mediation
Mediators
are “third parties,” not otherwise involved in a controversy, who assist
disputing parties in their negotiations. Legal
authorities often distinguish mediation from arbitration and other adjudicative
processes by the consensual character of the disposition.
Unlike most third party “neutrals” – notably the binding arbitrator
and the judge – the mediator does not issue a decision that the parties must
obey.
In
mediation the presentations by parties are usually not structured.
For example, a mediator may simply begin by asking the parties themselves
what brought them to this point and decide based on their responses how to steer
the later discussions. Often the
mediator arranges meetings among warring factions, listens, emphasizes,
encourages emotional outbursts only when constructive, convinces the parties to
face facts, urges them to listen, and compliments their efforts to accommodate.
In these aspects, mediation differs from non-binding arbitration,
mini-trials, and summary jury trials. These
terms describe settlement processes that share the non-binding quality of
mediation but tend to follow the traditional order of trials.
The
Mediation can and often does proceed without lawyers. When used, lawyers play several roles in the use of
mediation. Increasingly, lawyers
are instrumental in the decision to call in a mediator. Some of the advantages of mediation stem from the fact that
the parties themselves reach the settlement.
The most common risks arise because of the uncertainty about whether the
parties will ultimately settle. Thus,
compared to the lawyer in adjudication, the lawyer contemplating using mediation
or advising clients during mediation tends to focus less on determining how to
persuade a third party and more on assessing whether and how participation in
mediation will result in an acceptable agreement.
Over
the years, mediation has been increasingly viewed as part of the continuum of
alternative dispute resolution activities available to disputants.
Most
states require that all of the discussions during the mediation are private to
the parties and the information adduced in the proceeding is privileged.
The privilege includes any information received by the mediator or the
participants in the mediation, written records of the proceeding, notes of the
mediator or the
participants, or any other information in
control of the mediator or the parties.
If
you have a dispute and want to consider resolving the matter at Mediation,
Go to Mediation Rules or send
an e-mail message to info@jimbidwell.net.
and we will send you descriptive information about Mediation, a “Request
for Mediation” form to fill out, and we will contact the opposing party to
request their cooperation and participation in the Mediation process.
Go to Mediation Rules from here and review rules
Company Data / Construction Claims / Arbitration / Partnering / Engineering Services / Contract Administration for Architects/ Projects
Jim Bidwell, Inc.
2827 8th Street
Cuyahoga Falls, Ohio 44221
Telephone: 330-923-6817
FAX: 330-923-8947
Email: jim@jimbidwell.net