By Leslie King O’Neal
Introducing Mediation Magazine
On October 16, 2025, the American Arbitration Association (AAA) introduced its new digital publication, Mediation Magazine.[i]The debut issue features columns on AI & Mediation (MedAItion) by Amy Schmitz and William Froelich, International Mediation by Paul Sills and Mediation Aspects of SB 940 in CA by Mattie Robertson. AAA states: “Published online continuously throughout the year, Mediation Magazine aims to inform, inspire, and connect professionals committed to advancing effective, fair, and forward-looking mediation practices globally.”[ii]
The first edition’s articles include a discussion of early dispute resolution protocols; providing self-represented parties with an outline for pre-mediation statements; how mediation can effectively resolve construction disputes; mediation and the dispute review board; and multi-party mediations.
This post discusses the article, Mediation and the Dispute Review Board by Adrian Bastianelli, III.
Mediation and Dispute Review Boards
This article, by Adrian Bastianelli, III, a well known construction mediator and dispute review board member, discusses how mediation can be combined with a dispute review board (DRB) to resolve construction disputes. Most construction lawyers are well-acquainted with mediation, and many lawyers are also familiar with dispute review boards.[iii] However, the idea of using these two methods together is somewhat novel.
DRB’s and Mediation Have Different Focus
The article points out that DRB’s and mediation have fundamentally different approaches. DRB’s focus on who is “right” in the dispute, while mediation focuses primarily on the parties’ interests. While mediation risk analysis includes considering who is “right” or “wrong” in the dispute, the parties’ interests go beyond the strictly legal outcome. “The mediator’s goal is to help the parties find a business solution that is better than the alternative of arbitration or litigation,”[iv] without being bound by which party is legally right or wrong.
Mediating Before Parties Present to the DRB
Mediation can be used concurrently with a DRB. From a cost perspective, holding mediation before the parties make presentations to the DRB saves the costs involved in making the DRB presentation as well as the cost for the DRB to draft its recommendations. If the parties and counsel have developed the facts and legal arguments so that they are ready to present them to the DRB, they should have enough information to evaluate the risks of arbitration or litigation and the benefits of settlement.[v] Many counsel recognize that early mediation not only saves costs but also helps preserve business relationships. If mediation occurs before the work in dispute is performed, the parties may be able to mitigate their damages by finding a more cost-effective solution. Also, early mediation allows more creativity in developing non-monetary solutions.
Mediating After DRB Recommendations Issued
Holding mediation after the DRB has issued its recommendations means the parties have developed the law and the facts thoroughly, so lack of knowledge is not a settlement barrier. Also, the mediator can use the DRB’s recommendations on liability and damages to assist the parties in risk assessment. In addition, having an imminent arbitration or litigation usually motivates parties to resolve disputes.
Can a DRB Member Mediate the Dispute?
While having a DRB member who is also a mediator work with the parties to resolve the dispute may seem optimal, this approach has several drawbacks. It is similar to the “med-arb” process where the same person attempts to mediate the case and, if it does not settle, then acts as arbitrator. [vi] The primary issue with this method is the concern about confidentiality in mediation and whether parties will be honest in discussions with the mediator, knowing he or she may later decide the case. “If the parties are honest in the mediation and divulge their weaknesses . . . or their bottom lines for settlement purposes, can the mediator ‘unring the bell’ during a subsequent hearing on the merits . . .?”[vii] Despite the many problems, this approach can be successful if the DRB mediator is skilled and the parties are sophisticated. Of course, this approach requires the parties’ prior written consent and clearly defined rules.
Takeaways
- AAA’s new Mediation Magazine is an excellent resource for advocates and for mediators.
- Mediation can be combined with DRB’s to resolve disputes, both before and after the DRB issues its recommendations.
- A DRB member may act as mediator if he or she is skilled and the parties agree to this process in writing. Clearly defined rules are critical.
[i] https://mediationmagazine.org/
[ii] https://mediationmagazine.org/about-us/
[iii] See post on using Dispute Review Boards:
[iv] Adrian Bastianelli, III, Mediation and Dispute Review Boards, Mediation Magazine
[v] This is similar to the Guided Choice Mediation approach. See post: Mediation Success with Guided Choice
[vi] For a detailed discussion of the med-arb process and its advantages and disadvantages, see, Adrian L. Bastianelli, III, and Joseph N. Frost, Alternative Alternative Procedures to Resolve Construction Disputes, 15:2 J. Amer. College of Constr. Lawy. 1-14 (Summer 2021)
[vii] Bastianelli, supra, note iv.