By Leslie King O’Neal
What happens when you put four construction mediators together? Of course, they talk about their experiences mediating construction cases.
The Georgia Bar Construction Section invited Deborah Ballati, https://www.linkedin.com/in/deborah-ballati-75100515a/ Hal Gray, https://www.linkedin.com/in/herbert-h-hal-gray-iii-6174b419/ Steve Nelson https://www.linkedin.com/in/steve-nelson-6a9b413/ and me to participate in a free webinar on June 20, 2025. Todd Heffner of Smith Gambrel Russell moderated the discussion.https://www.linkedin.com/in/toddheffner/
The discussion topics ranged from mediation clauses in contracts to mediator selection, from pros and cons of opening statements to ideas for multi-party mediations. Here are some highlights:
Required Mediation in Contracts–Early Mediation
Some construction contracts have “stepped” dispute resolution clauses requiring negotiation and mediation prior to filing litigation or an arbitration demand. These can be helpful in getting mediation started early, but there can be drawbacks. While all the panelists favored early mediation, they agreed that frequently such mediations fail because the parties lack sufficient information about key issues, such as insurance coverage and damages. Providing for targeted information exchange prior to the mediation session is good practice. Parties are better able to make settlement decisions when they have adequate information.
Mediation Statements
Well-drafted mediation statements are important tools for mediators. However, the panelists agreed they preferred to receive the mediation statements several days before the mediation session. This gives the mediator time to digest the information. Also, the panelists found having the mediation statements was useful when having pre-mediation calls with counsel and parties, so they could discuss areas one side or the other may have missed. Everyone agreed that getting mediation statements (and lengthy exhibits or expert reports) late on the night before mediation was not helpful. When drafting a mediation statement, think about what will help the mediator in settling the case (e.g. information about insurance coverage, expert opinion summaries, damages summaries).
Pros & Cons of Opening Statements at Mediation
Opening statements at mediation were once the standard. Some mediators now discourage opening statements because they tend to inflame participants rather than bring them together. The panelists commented that, in some cases, parties needed to be heard as part of the mediation process, so opening statements can be useful then. Steve Nelson suggests creating a video opening statement (on Zoom for example) and circulating it ahead of time. This allows the opposing party to spend time understanding it and also to share it with a wider group within the company.
Multi-Party Mediations
These require more planning and preparation to optimize success. Counsel and parties should understand that mediation of large multi-party disputes is a process not an event. It’s important to set parties’ expectations early to prevent mediation fatigue and disillusionment. Multi-party disputes can benefit from using neutral evaluations about specific issues, such as damages calculations or insurance coverage issues before mediation. Having co-mediators may also be useful in multi-party mediations to keep the process from de-railing.
Recommended Resources
In the presentation’s “lightning round” the panelists named books or other resources that helped them in their mediation practices. The recommended books, Bargaining with the Devil: When to Negotiate and When to Fight and Controlling the Cost of Conflict were featured in The Construction ADR Toolbox’s ADR Summer Reading List.[i] Deborah Ballati recommended Irving Younger’s trial preparation tapes, which were used for training when she was an associate. They are somewhat dated, but still valuable resources.[ii]
Watch the whole webinar by clicking this link: https://www.youtube.com/watch?v=l55BXGJcmv8
[i] https://theconstructionadrtoolbox.com/2025/07/adr-summer-reading-list/
[ii] Irving Younger Tape 1 https://www.youtube.com/watch?v=OJUnO8Lcwk8; Irving Younger Tape 2 https://www.youtube.com/watch?v=eJtGRB6qPBA; Irving Younger Tape 3 https://www.youtube.com/watch?v=h40HYO5qHIE; Irving Younger Tape 4 https://www.youtube.com/watch?v=uTpAXoUN9ug