In the construction and engineering field, few mediators have the skill or reputation of Ken Gibbs, who has successfully mediated more than 2,500 cases and is ranked by Chambers USA as “one of the best construction ADR professionals in the United States” and referred to as “the dean of construction dispute mediation.” While I was global head of litigation for AECOM, we regularly turned to Ken to mediate our most difficult matters. I recently had the opportunity to talk to him about how parties can achieve the best possible results in mediation. Here are his top seven tips for getting the most out of mediation:
- Proper prior preparation: The adage “Proper prior preparation prevents poor performance” holds true for mediation as well. To properly prepare, analyze with your counsel your best-case, worst-case and most likely outcomes and what it will cost to get there. Your counsel is your advocate before courts and tribunals, but before a mediation, your counsel should be your “counselor” and discuss their evaluation of your position.
- Being transparent with the mediator is the single most effective step you can take to maximize success. I can’t emphasize this enough, as it is seemingly counterintuitive. Many people believe that the first rule of negotiation is to never ever tell someone what you are really thinking. However, over my 25 years as a mediator, I’ve found that the parties that do the best in mediation are the ones that “level” with the mediator and tell them what they are really thinking regarding settlement. If the mediator, based on their expertise, agrees that a party is taking a reasonable position, they can work with that party to achieve its desired outcome. If the mediator believes your position is unreasonable, transparency gives them the opportunity to give you their honest evaluation.
- Focus on quantum, not just entitlement. Many times, parties and their counsel put extensive focus on entitlement and then gloss over quantum. Damages drive settlements. Analyze and understand what your damages are and how you can prove them. Parties need to be able to convince the mediator (and the other side) that they can prove the damages they are seeking.
- Don’t fixate on pingpong Be careful not to let the traditional offer/counteroffer process freeze or harden your position. All too often, I see parties “insulted” by using traditional offers and counteroffers, which I call pingpong. Be flexible in your approach to negotiations, and let the mediator guide you with respect to the best manner to proceed. Don’t be in too much of a hurry to get into an offer/counteroffer scenario.
- Effective use of experts makes a difference. Use your experts to explain the critical path of the project to the mediator and other party, and show how the actions of the other side translated to critical path delay. It will also be very helpful to have an expert who can justify claims, defenses and your quantum analysis.
- Count coverage counsel If insurance coverage is in play, having a coverage attorney on your side can make a real difference.
- When all else fails, consider neutral evaluation. Complex or mega cases in which the parties have come to a seemingly unshakable impasse during traditional mediation—such as a construction dispute in which each party charges the other with a material breach of contract, resulting in respective damage calculations millions of dollars apart—may benefit from moving to a neutral evaluation process. To be effective, the mediator should be experienced and respected in the area of law at issue and knowledgeable about how to conduct this method of dispute resolution. Rather than declare an impasse, the neutral continues as mediator but assumes responsibility to “hear” and analyze the facts of the case and provide an informed, nonbinding evaluation and settlement recommendation as to the issues defined by the parties. This evaluation can be oral or in writing.
Ken also shared with me his suggestions for how to structure a neutral evaluation. Based on his many years of experience, this process works best when the mediator is provided with each party’s evidentiary presentation in an informal, mini-trial format, over a one- to two-day hearing, structured by the parties however each side thinks will best present the essence of its case in the time allotted. Experts may be hot-tubbed; evidence may be provided via summaries, narratives or power point presentations; and post-hearing argument may be oral or written. At the close of the mini-trial, the parties decide whether to go back to mediation or confirm that the mediator issue a written analysis and settlement recommendation. If the parties opt for a neutral assessment, the mediator issues a nonbinding, confidential analysis of the issues submitted for evaluation and a settlement recommendation based on that analysis. This assessment not only provides the other side (and its carriers) with cover, but the opinion will be sent up the chain for many purposes and often, ultimately results in a settled dispute.
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