Neutral Evaluation: Another Tool in the ADR Toolbox

For almost thirty years, mediation has been the dominant alternative dispute resolution technique for settling construction disputes, and for good reason. It seems every significant construction case goes to mediation at some point in the dispute’s life cycle, and often it works. Mediation continues to be a powerful and effective tool for settling a wide variety of cases in a cost-effective manner. But, of course, not all mediations result in a settlement.

Mediations fail for a wide variety of reasons. One common situation where mediation is not productive is where both sides feel strongly and sincerely that they have a very strong case. This mutual high degree of confidence in the merits of their case prevents the parties from making the kind of concessions needed to get to a mutually acceptable settlement figure. But, of course, they cannot both be right. One party or the other, and often both parties to some degree, is misreading the actual strength of its case. If the case goes to trial or arbitration hearing, one side is going to be very disappointed, while the other will be proven to have been closer to the mark in its case evaluation. But which party is off the mark?

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The Construction Lawyer