By Leslie King O’Neal
Phil Bruner’s Tips For Successful Multi-Party Mediations
Phil Bruner (Philip L. Bruner, Esq., JAMS Mediator and Arbitrator) is an icon in the construction law and ADR worlds. I was honored to be his co-author on this article on mediating multi-party construction disputes for the JAMS newsletter.
Multiparty Mediations Strategies for Success | JAMS Mediation, Arbitration, ADR Services
Advance Planning Is Key to Multi-Party Mediation Success
Construction disputes frequently involve multiple parties and complex legal and factual issues. Mediating these disputes successfully requires advance planning to get all the parties to the table, providing them necessary information for informed decision-making, and analyzing insurance coverage and other issues. The article outlines key steps to prepare for multi-party mediations, including:
- Identify and Notify the Necessary Parties–having the right parties at the table is essential. It’s important to give them proper notice of claims against them and of the mediation session.
- Identify Influencers Not in the Room–such as guarantors, indemnitors, “silent partners” etc. Understand their role in reaching resolution.
- Review All Insurance Policies and Their Requirements— since insurance policies are critical in resolving many cases, knowing what insurance is available & sending appropriate notices should be done well before mediation. Having a matrix of insurance coverage is helpful.
- Share Information Confidentially Before Mediation–defendants and insurance adjusters need information about liability & damages before negotiating to set appropriate reserves and obtain settlement authority. This may include preliminary expert reports. Doing this under the mediation confidentiality umbrella is beneficial. (see discussion below on “guided choice” mediation).
- Don’t Forget About Damages–exchange damages summaries and calculations before mediation–this applies to third party claims and cross claims as well as primary claims. Any party expected to contribute to settlement should have damages information before negotiation.
- Explain the Mediation Process to Client Representatives–even sophisticated project executives and managers may have little experience with mediation. It’s worth spending time with decision makers to review how the process works and to understand the client’s settlement goals and assess risk.
- Think About Logistics–Consider scheduling “mini-mediations” on discrete issues (e.g. specific design/construction defects–windows, walls, roof, etc.) or specific change orders. Consider whether in person or virtual mediation is better for your case.
Guided Choice Principles Apply to Multi-Party Mediation
This post follows up on the recent post (10/21/24) discussing “Guided Choice Mediation,” (MEDIATION SUCCESS WITH “GUIDED CHOICE”) since multi-party mediations lend themselves to the Guided Choice approach. Advising the mediator about potential settlement obstacles before the mediation session is particularly helpful in multi-party mediations. This allows the mediator to develop strategies for overcoming these obstacles.
Takeaways
Advance planning is helpful in all mediations, but it is critical to success in multi-party mediations. These steps provide an outline for preparing a multi-party case for mediation. Of course, every case is different, so adapt the outline to fit the specific facts and issues in your case. Using the “Guided Choice” approach by involving the mediator in confidential information exchange before negotiation is particularly useful in complex multi-party cases.
