July 8, 2024

What do construction professionals really want from arbitrators, mediators, and dispute review board (DRB) members? Well, ConsensusDocs is hosting a series of ConsensusDocs webinars on July 16, July 18, and August 28 on alternative dispute resolution (ADR) procedures. Sign up and prepare by reading the article “Achieving ADR Success Through Practice and Experience: Survey Results of What Attorneys and Arbitrators Want in Construction Mediation and Arbitration” by Dean Thomson and Julia Douglass, which provides helpful data on the topic. Through comprehensive surveys and analysis, the authors identify gaps between theoretical assumptions and actual practices and preferences and offer insights into improving dispute resolution processes in the construction industry,

How to Improve Mediation Outcomes

The first part of the article focuses on how best to improve mediation outcomes in construction disputes. Through survey responses from over 330 construction attorneys, the authors analyze whether the standard approach to mediation meets practitioners’ mediation goals.  Their survey results indicate that mediation practice can be improved and that attorneys want to obtain sufficient information for an informed settlement while avoiding the high costs of extensive discovery. Additionally, the survey highlighted the attorney’s goal of maintaining business relationships during mediation.

The survey shows that Guiding Mediation best delivers what practicing attorneys want by actively engaging the mediator in conferences well before the scheduled mediation to help design and guide the parties to design a mediation process best suited for their particular dispute. Effective early pre-mediation session engagement ensures that parties are adequately prepared and have the best chance of producing desired mediation results. Further, the article suggests that this approach best fosters continued positive business relationships post-dispute.

The article also outlines ineffective mediation practices to avoid and suggests effective mediation practices to pursue, such as drafting Guided Mediation processes into the ConsensusDocs mediation clause.

Common Misconceptions in Arbitration

The second part of the article delves into arbitration, examining common misconceptions and preferences among construction arbitrators. Surveys of over 220 construction arbitrators addressed the following myths: the belief that arbitrators do not follow the law, do not allow discovery, do not grant summary judgment, or tend to make compromises that do not fully satisfy either party (“split the baby”), and this part also offers suggestions for arbitration success based on the arbitrators’ responses.

Evaluating these myths, the survey found that most arbitrators allow for discovery, but the extent, limitation, and application of discovery varies by case complexity and arbitrator. The survey also reveals that arbitrators will grant summary judgment when appropriate and that arbitrators are divided on whether or not a summary judgment motion is useful. Next, the survey revealed that arbitrators do not take a “split the baby” approach, and most arbitrators are committed to following legal principles when making their decisions. Finally, the articles details advocacy techniques that arbitrators find effective regarding case organization and presentation, evidence introduction, and use of expert witness testimony.