By Leslie King O’Neal
Getting to “yes” in construction mediation can be a lengthy process as parties and counsel sift through voluminous documents, expert reports, insurance policies and damages models to understand the risks and do cost-benefit analyses for settlement. If the parties haven’t exchanged information before the mediation session, negotiations may stall until insurance representatives or others obtain necessary data. This can prolong the process for weeks or months; in the worst case, mediation fails entirely.
Guided Choice Mediation—A Different Approach
Guided choice mediation takes a different approach. Guided choice mediation is a process rather than an event. The parties arrive at the mediation session after reviewing important documents and engaging in risk analysis. It streamlines the process to reduce delays and expenses (e.g. discovery disputes, motion practice).Using this approach, when negotiations begin. parties should have reasonable expectations for resolution and appropriate settlement authority
Key Elements of Guided Choice Mediation
The key elements of guided choice mediation are:
- Early mediator engagement
- Mediator-facilitated information exchange before negotiation
- Mediator involvement with insurance issues before negotiation
- Pre-mediation ex parte meetings with mediator & parties
- Mediator facilitates parties’ risk analysis
- Mediator learns likely settlement obstacles and develops strategies to avoid them
Possible Roadblocks to Using Guided Choice
Guided choice can be used in pre-suit mediations, but it is sometimes difficult to get all parties to the table where there is no pending litigation. Some insurance companies require litigation to “trigger” their coverage. Similarly, construction defect cases in arbitration face challenges in getting lower tier subcontractors or suppliers to participate if they are not parties to the arbitration. These obstacles can be overcome, but doing so requires additional planning and effort.
Bruce Alexander & Clifford Shapiro Explain Guided Choice Mediation in Multi-Party Cases
In this video, experienced construction mediators, Bruce Alexander (West Palm Beach, FL) and Clifford Shapiro (Chicago, IL) give a step-by-step explanation about using guided choice mediation in a multi-party construction defect claim.
Takeaways
Guided choice mediation creates a streamlined process for parties to get sufficient information to make an informed decision before negotiating. This approach is especially helpful in multi-party disputes with layers of insurance coverage, but it can be applied to many types of disputes
Resources
Julia Douglass and Dean Thomson. “Guiding Mediation To Meet Demand“. American Bar Association, Forum on Construction Law, Annual Meeting (May 2022).
Paul Lurie, Guided Choice: Early Mediated Settlements and/or Customized Arbitrations, 7 J. ACCL 167 (Summer 2013) accl journal summer 2013 pam (gcdisputeresolution.com)
Guided Choice Mediation website: Guided Choice Mediation | Early Dispute Resolution Using the Best Practices of Commercial Mediation and Arbitration (gcdisputeresolution.com)
