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The Construction Lawyer as Mediator

Christopher G. Hill, Construction MediatorRecently there has been much discussion about whether a construction attorney’s involvement  is actually a detriment to a construction project and its potentially litigious aftermath. I have spent a couple of posts at Construction Law Musings to discuss the benefits of hiring a construction attorney early in the project, and even later in the event that a dispute arises. Without rehashing those discussions (I encourage you to check them out and weigh in), these two posts (and the other arguments made elsewhere) assume that the construction lawyer’s role was as an advocate and, more importantly, counselor for a particular client with the duty to protect that construction professional’s interest.

There is, however, a third role that I personally embrace on a regular basis: the role as mediator. Aside from the advocate’s role (one that I enjoy and see as necessary for the protection of my clients), an experienced construction attorney can also serve as a neutral mediator to assist the two sides of a construction related dispute reach a resolution short of the time, risk and expense of a trial and a judge’s decision. As a non-partisan mediator and solo attorney, I can and often do have insight into the small business aspects of the dispute and some of the cash flow pressures and other concerns that would not be relevant in court, but often drive the thought processes during mediated negotiations.

I have discussed mediation (and other forms of alternative dispute resolution) extensively, but even I need a reminder of why I am a huge advocate of this dispute resolution method.  I received just such a reminder last week when acting as a mediator in the Chesterfield County General District Court. These sessions consistently remind me of a major benefit of mediation: the parties get to vent and share the “non-legal” issues that may drive a dispute. While a mediated agreement almost always comes down to money (at least in construction matters), the key to a settlement often has nothing to do with money. Without the restraints of the rules of evidence and courtroom procedure, the parties can, and should, voice concerns that in a courtroom would likely be deemed irrelevant. This will let the parties control the pace of the discussion and allow them, in my opinion, to feel that their concerns have been considered in a way that the litigation process may not.

Throw in the knowledge of the construction field (and probably litigation) that a construction attorney/mediator brings to the table, and you very well may have a recipe for a resolution without the negatives voiced elsewhere. By use of this subject specific knowledge, those of us who engage in mediation both as counselor and mediator can add a level of assistance for our clients and the clients of others that should lead to more client satisfaction and a smoother process over all. In short, the construction lawyer as mediator can be yet another benefit of the legal professions assistance to the construction industry.

Do you agree? What are your thoughts on the subject? I’d love to hear your comments below.

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Christopher Hill is a construction lawyer at The Law Office of Christopher G. Hill, PC in Richmond, Virginia and a member of the Virginia's Legal Elite in Construction Law. You can follow his blog at: http://constructionlawva.com/about-2.

Related Posts:

Flying Solo: How it Helps My Construction Clients

Mediation and Solo Construction Practice

5 Tips for Successful Mediation

Comments for The Construction Lawyer as Mediator


Name: Jack Rephan
Time: Monday, October 20, 2014

Hi Chris. I thoroughly agree with your thoughts about a construction attorney acting as a mediator. As a member of the National Panel of Neutrals of the American Arbitration Association, I regularly serve as a mediator of construction disputes and have been doing this for many years. I believe that from 90 to 95 percent of the cases I have mediator have resulted in a settlement. The same can be said for the cases in which I have represented one of my construction industry clients. Litigation of construction disputes in just too expensive today. And having a person who is familiar with construction law as well as familiarity with the types of issues which frequently arise during a construction project is an advantage to both parties to a dispute which may not be the case in litigation.

Name: Christopher Hill
Time: Monday, October 20, 2014

Thanks Jack,

I appreciate an experienced guy like you reading my thoughts.

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