A Certified Mediator With Over 30 Years Of Experience As A Litigator, Corporate Counsel And Superior Court Judge

How can mediation be useful in addressing construction disputes?

On Behalf of | Jun 13, 2024 | Mediation

Construction contracts are often very detailed because they deal with the complex realities associated with building structures and remodeling buildings. Both parties to any contract are expected to uphold their own side of the agreement, but this doesn’t always happen.

When any of the terms of a construction contract aren’t met, the contract is breached. This may lead to legal action; however, that doesn’t have to mean going to court. Some breaches of construction contracts are handled through mediation.

Preparation for mediation

Preparation is key when addressing a breach of a construction contract through mediation. Begin by gathering all relevant documents, such as the original contract, any amendments, correspondence, and records of payments or delays. Understanding the specific terms of the contract and the nature of the breach is crucial

It’s crucial for the contractor to have a realistic expectation for the mediation sessions. Some may think they have to get everything they’re asking for, but that doesn’t leave room for negotiation so it’s not necessarily a suitable mediation situation. Contractors should be provided with a range of realistic solutions so they are prepared to accept one that’s suitable.

Open communication

Maintaining open and constructive communication during mediation can facilitate a resolution. Mediation is designed to be a collaborative process, so a contractor must remain focused on finding mutually agreeable solutions rather than adversarial positions. Both sides should be comfortable discussing the issues at the heart of the problem and working through each one to find appropriate solutions.

All parties should understand that the role of the mediator is to keep the negotiations moving forward. Because the mediator must remain neutral, they can’t provide either side with advice about what they should do.

Mediation to address construction contract breaches is often effective, but it relies on both parties being open to negotiations. It can be particularly helpful in situations where a business relationship is best kept intact. Considering the benefits and drawbacks of this alternative dispute resolution method when compared to litigation may help contractors recognize this is a suitable option for resolving a dispute.