Why You May Not Want a Mandatory Mediation Clause in Your Construction Contract

A simple statistical mediation model.
A simple statistical mediation model. (Photo credit: Wikipedia)

I know, you are likely surprised by the title of this post. You’ve read Construction Law Musings for a while now and know that as a Virginia Supreme Court certified mediator, I have advocated mediation as a great way to resolve your construction disputes short of the expensive and time consuming litigation process. Knowing all of this, you as a reader of this blog (thanks by the way) probably wonder why I think that a mandatory mediation clause may not be the best thing for your construction contracts. I can understand your possible confusion (particularly in light of this post from @sethsmiley).

Please don’t take the headline as my suddenly taking a new view of mediation. Short of simply resolving the dispute between the parties to the construction contract, mediation still remains number one on my list of construction dispute resolution mechanisms. I still believe that it is useful even when a resolution is not met after a good faith attempt by both sides to come to a business agreement. However, I also believe that mediation works best when entered into voluntarily by the parties.

In short, I’m not sure that mandatory mediation, where the parties are forced to mediate, is the most efficient way to have the mediation process work. In my work as both a mediator and a Virginia construction attorney I have too often seen parties forced to mediate as a pre-condition to moving on to court or arbitration simply come to the table with the attitude that they simply wish to “check the box” and move on to what they at least thought they wanted to do in the first place, get on with the lawsuit. This attitude is not conducive to a successful mediation (with success defined as an agreement or significant movement toward one). I find that where parties to a contract are forced to come to the table, as opposed to choosing to do so, they are less likely to say yes and less likely to listen to the issues raised by the other side and the mediator. Having one foot out the door is not a great way to negotiate.

So to sum up my views: Should parties mediate in almost every case? Yep. Should they choose this as a great dispute resolution alternative? Of course. Should they be forced to do so by contract when they may not be ready or willing to truly embrace the process? I’m not so sure.

I’d love to hear other thoughts on mediation and whether is should be required by terms of a construction contract.

As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.

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