2006 Issue

www.utahengineerscouncil.org 12 UEC JOURNAL February 2006 Mediation impose a settlement on the parties. In- stead, the mediator helps the parties to jointly explore and reconcile their differ- ences through communication and prob- lem solving. One benefit of mediation is that the parties may jointly select a me- diator who is familiar with the type of dispute in which they find themselves. For design and construction disputes, the par- ties may select a design professional, con- tractor, or construction attorney to act as themediator. This familiarity often stream- lines the discussion and settlement options. Every mediation is different and unique. While the length will vary, the majority of mediations are completed in eight hours or less, making the process much more efficient than litigation. More complex cases, however, may require more than one day to mediate. In con- trast to litigation, where parties must com- ply with and wait for an opening in a crowded court calendar, media- tors arrange a mutually con- venient time and place for the mediation. For a successful mediation, persons em- powered to settle the disputemust be present. It is rarely acceptable to have final author- ity reside in a personnot in attendance. Ad- ditionally, attorneys often represent their clients at mediation. Parties may also de- cide to invite other persons with important knowledge of the dispute if their contribu- tion will be helpful. Mediation is only as successful as the parties’ willingness to resolve the dispute. Because the mediation process emphasizes the input and freewill of the parties, those who enter the mediation with optimism for resolution and negotiate in good faith are more likely to find an acceptable reso- lution than UEC CHAIR F E A T U R E Engineers in Mediation I n ever increasing numbers, parties to design and construction disputes are using mediation as a means of resolution. Many contracts under which engineers perform their work, in- cluding AIA Document C141–Standard Form of Agreement Between Architect and Consultant, require mediation as a primary means of resolving disputes aris- ing under the contract. Participation in mediation can also be voluntary, which increases the likelihood of settlement. Because of the growing trend to use me- diation in settling design and construc- tion disputes, this article explains the ba- sics of the mediation process. Mediation is an alternative to litiga- tion that is effective, efficient, and typi- cally cheaper. It is an informal process in which a trained, neutral third party, the mediator, assists the parties in reaching a negotiated settlement. Mediation is for- ward-looking; the goal is for the parties to reach a mutually acceptable solution. The process focuses on solving problems, not assigning blame or uncovering “the truth.” While there is no authoritative study on the success rate of mediation, the Ameri- can Arbitration Association reports an eighty-five percent success rate for their construction disputemediations. This high percentage is evidence that mediation is a very effective alternative to litigation. The mediator is a neutral facilitator of the process. Unlike a judge, jury, or ar- bitrator, the mediator does not decide who is right or wrong and has no authority to Engineers In A Growing Trend By Adam T. Mow, AIA, Esq.