Construction law disputes vary in size and complexity. In Chicago, construction law disputes may stem from the creation of a 500-foot skyscraper or from the renovation of a simple one-story home; they may involve a single homeowner and contractor or dozens of engineers, subcontractors and architects. Regardless of the structure at the center of a dispute, attorneys owe it to their clients to provide a candid evaluation of the benefits andoccasional downsides of mediating construction related cases. In locales like Cook County, where mediation may be court mandated, attorneys too often give little explanation of mediation to their clients, and they imply this is just a required and not generally worthwhile procedure.
Taking the time to explain to clients how beneficial mediation truly is will increase the odds that a settlement is reached. Also, attorneys should devote care to the process of selecting a mediator. Too often and hourly rate and immediate availability outweigh the value of an experienced and constructive mediator at the table with the parties. In the construction arena, while in some cases the parties never willagain deal with each other, many times there is value to be found in crafting a mediated solution that is not just expressed in dollar and cents terms. Reputation and opportunity ought not to be neglected.
Attorneys should ask their clients to be prepared to explain the entire problem they have with the situation. For customers, this may include intangible losses, like ability to show a space due to time overruns or construction defects. It also does the client good to figure out what his or her best solution to their problem is, and whether that is best targeted in court or by mediated agreement. The other side may give up things or perform favors to get to mediated private settlement that are unavailable after a trial.
Your clients should also understand that mediation provides them with control over the outcome of their cases. Explaining the mediation process in detail will alleviate your client’s concerns about the next steps in the case.