Mediation of Commercial and Construction Disputes

Lou Chang, ALC

Mediator . Arbitrator . Neutral Services

Copyright, 2009

What is Mediation?

Voluntary and non-binding process Impartial third party assists Parties control outcome, Mediator cannot

compel agreement

What Does a Mediator Do?

Convenes: brings parties together Encourages productive communications Accelerates negotiations Identifies options for resolution Defuse hostilities/create positive

atmosphere Overcome impasses Mirror of reality/assess options

Why consider mediation?

Highly effective: 75–80 percent resolution Quick Inexpensive Flexible/win-win solutions Private and confidential Protects relationships Low risk: parties have decision-making control Durable: voluntary agreements more lasting

Selecting a Good Mediator

Determine the qualifications and experience desirable and effective for your case

Check mediator’s training & experience Get references and referrals and check them

out Review resume and written disclosure Consider who will be effective with the

other party(ies)

What styles/type of mediator do you need? Facilitative: guides and assists parties to

communicate and identify potential solutions. Parties decide free of pressure.

Evaluative: mediator uses experience and knowledge/provides assessment, recommendations.

Muscle: mediator uses stature, position and experience to persuade and push recommended proposal.

Transformative: mediator works to restore, strengthen and transform relationships so parties can deal with issues by themselves.

Using mediation effectively-1 Appreciate its flexibility, customize the process to

fit the needs of the parties Use the power of the mediator to accelerate

information exchange, streamline the issues, activate & involve necessary parties and position case for settlement

Identify and gain active participation of important decision makers

Make sure all necessary, involved parties are working on the same time line toward resolution

Using mediation effectively-2

Know your case strengths and weaknesses Take the opportunity to present a powerful

and succinct summary to the mediator Don’t miss opportunity to communicate

strengths of your case to the other party(ies) Utilize the real world relationships and

opportunities that may exist

Using mediation effectively-3

Listen hard for all possible options and solutions

Understand the needs, hopes and dreams of all parties

Tailor options and solutions to meet the spoken/unspoken needs and interests

Design the process to fit the needs of the parties rather than fitting the parties to the process

Using mediation effectively-4

Be creative/open to all possibilities Identify multiple options, more the better Look for a win-win options and options

that increase value Mediator sometimes can find out valuable

information helpful to settlement Be ready with and bring draft of possible

settlement agreement with blanks to fill in

When agreement is reached

Document it immediately Make it enforceable, incorporate

resolution process to resolve language differences

Protect relationships and future potential