Facing a construction dispute, whether due to a broken contract, payment issues, unforeseen changes in the project or more, can be distressing. While this blog previously discussed the prevalence of arbitration in Massachusetts construction disputes, mediation is another suitable alternative to litigation in seeking a solution to a conflict.
Both parties may agree on mediation in a contract ahead of time as a preferred method to resolve a dispute. As an alternative dispute resolution (ADR) technique, mediation involves a more collaborative, efficient approach to resolve a dispute and can ideally preserve the business relationship along the way.
How does mediation work?
Mediation is a more informal procedure in which the two opposing parties discuss their conflict with the aid of a neutral, third-party mediator. While the mediator does not have the authority to ultimately force an agreement or settlement, they will facilitate the discussion to ideally arrive at a resolution.
Several of the mediator's duties include assisting the parties to pinpoint key issues, identifying shared interests, facilitating problem solving, exploring alternatives to a solution and more. If both sides cannot reach a settlement, they may continue on to litigation to seek a solution from a judge.
Advantages of mediation as a conflict resolution method
Mediation has many benefits, particularly in construction disputes. Several of these benefits for both parties include:
- The potential to save money. When both parties reach a solution through mediation, they can bypass the traditionally expensive litigation process.
- Efficiency. While the mediation process is typically quicker, the parties can also usually begin the process sooner than they could with litigation.
- Confidentiality of the dispute and decision. The entire process is private, as opposed to the public records of a courtroom fight and decision.
- More control in the process. By participating directly in the discussion and potential solution, both parties have more input than they would in court.
- Direct and open communication. Both parties communicate directly with each other, rather than through attorneys on opposite sides of a courtroom.
- The potential to preserve the business relationship. By working collaboratively, many working relationships can be preserved.
Mediation is a voluntary process and does not always yield a result. In this case, the parties may decide to escalate the issue to arbitration or litigation. However, whether you are a contractor, supplier, business owner or more, mediation can be a productive means to resolve a conflict.