2006 Issue

www.utahengineerscouncil.org 13 UECJOURNAL February 2006 those who begrudgingly participate. Agreements reached through mediation help maintain relationships because the process avoids much of the hostility asso- ciated with litigation. This is especially important because the Utah design and construction community remains some- what small and parties often work together more than once. Experienced mediators use a format that is best suited for the particular dispute. Generally, the process of mediation falls into six stages. First, themediator will make an opening statement that introduces the parties and explains the goals and rules of the mediation. Second, the parties make opening statements to explain, in their own words, what the dispute is about, its effect, and ideas for resolution. Third, the media- tor may facilitate direct communication between the parties regarding what was said in the opening statements. This allows the mediator and parties to determine what is- sues need to be addressed. Fourth, the me- diator may meet privately with each party in a “caucus” to discuss the strengths and weaknesses of the party’s position and brain- storm ideas for settlement. Fifth, after cau- cuses with each party, the mediator may bring the parties together again for direct negotiation, especially when resolution is probable. Finally, if the parties have reached an agreement, the mediator will likely put the main provisions in writing. If the parties wish, they may draft and sign a legally binding agreement at themediation. An agreement reached during mediation is enforceable incourt just like any other settle- ment agreement. If no agreement has been reached, the mediator will review the progress made in the mediation and future options, such as meeting again for further mediation, arbitration, or litigation. All aspects of the mediation are confi- dential. This confidentiality is especially important if sensitive matters are part of the dispute. Documents created for the mediation and discussions during the mediationmay not be introduced during a subsequent trial if the F E A T U R E Engineers in Mediation dispute is not settled. Likewise, the me- diator cannot be compelled to testify at a subsequent trial. In conclusion, mediation is one pro- cess for resolving design and construc- tion claims and is often included in en- gineering contracts. Mediation is flex- ible, efficient, and cost-effective. While it is not appropriate for every dispute, mediation has the advantage of allow- ing the parties to choose the outcome rather than have it determined for them by a judge, jury, or arbitrator. The final decision to settle and on what terms al- ways remains with the parties. By under- standing mediation, engineers can be better prepared for and less intimidated by what is typically a beneficial dispute resolution process. ■ Adam T. Mow is an attor- ney with the construction law firm of Babcock Scott & Babcock in Salt Lake City. He is also a licensed architect and a frequent mediator. Mediation is only as successful as the parties’ willingness to resolve the dispute. It is one process for resolving design and construction claims and is often included in engineering contracts. Mediation is flexible, efficient, and cost-effective.