Q: As we all know, litigation can be a timely process. As such, there is a trend toward mediation, especially when it comes to contracts and issues involving construction. You are a highly experienced litigator. What do you see are the pros and cons of mediation, and what guidance can you provide for contractors, subcontractors, suppliers, etc., when it comes to mediation best practices?
A: Over the years, my practice has included personal injury, premises liability, employment disputes, boundary issues, and construction law. I’ve had the opportunity to represent both plaintiffs and defendants, which has shaped my appreciation for the nuances of dispute resolution from both sides of the table. Today, my work is focused primarily on defending medical malpractice claims. Despite this evolution in subject matter, one constant remains: mediation is often the most effective path to resolution.
Construction litigation, in particular, is well-suited to mediation. These cases frequently involve multiple parties—owners, general contractors, subcontractors, and suppliers—with varying levels of risk, insurance coverage, and contractual obligations. Mediation offers a structured yet flexible forum to sort through these complexities. Key advantages of mediation in construction disputes include cost efficiency, as these matters are typically document-heavy, with extensive written discovery and multiple depositions that can drive up expenses quickly. Mediation provides an early opportunity to avoid much of that cost while still working toward resolution, and it also enables parties to craft creative, project-specific solutions, such as modified payment plans or adjusted warranty terms. Additionally, the level of party control in shaping an outcome can be particularly valuable in an industry where professional relationships are often ongoing in the midst of complex litigation.
These benefits must be weighed against the potential pitfalls. Power imbalances between a small subcontractor or supplier and a larger, better-resourced general contractor can impact negotiations. As such, obtaining and evaluating key documents well in advance of mediation is critical, especially in disputes involving indemnity clauses, change orders, or scope-of-work issues. Mediating without a firm grasp of those details can leave a party exposed or underinformed. Choosing the right decision-maker to attend mediation is another often overlooked factor. A representative with detailed knowledge of the work performed and the authority to negotiate meaningfully, whether as a project manager, a risk manager, or a principal, can help gain traction during mediation. Most importantly, candid client conversations must take place in order to identify strengths, weaknesses, and settlement expectations beforehand.
Whether in construction, medical malpractice, or virtually any other area of the law, our results are increasingly defined by our approach to mediation.
