For 26 years, attorney Paul J. Weinberg, Irvine, Calif., helped clients choose mediators before becoming one himself. A potential drawback he's noticed among some retired judges is that they're used to handing down decisions. “When you're a mediator, you're not the boss of anyone, and it takes a very different skill set to come to a middle ground gently,” he says. So what does it take to help people get conciliatory? Humility, for one thing. Empathy for people, tremendous patience, creativity, and an ability to read plans and engineering reports, he says. Berman agrees, adding to the list exceptional communication skills, trustworthiness, and the power of persuasion. “They have to be people who can roll up their sleeves and sit with a bunch of experts, unroll the plans, and talk about them, or sit in a room full of lawyers and talk about the law. They're a bit [like] chameleons, able to make the parties comfortable while inspiring confidence.”shuttle diplomacy
What happens when someone wants to sue for damages? Usually that person's lawyer sends a certified letter to the opposing party stating that such-and-such clause in the contract requires mediation and asks the defendant to respond within 10 days. Included with the letter is a list of potential mediators, with the stipulation that the fee will be split 50–50. The two parties agree on a mediator together—and, of course, it's crucial that they choose someone with a solid track record on the issue at hand.
To prepare a brief, the architect's lawyer needs to have a good chronological history of the project from the architect's point of view. In a case relating to, say, a construction defect, the attorney will ask for original copies of plans and engineering drawings, manufacturer specs showing how the failed item was to be installed, as well as recollections from site visits and correspondence showing how the problem developed. “Photos and video are the [top] tools mediators use to see graphically where the problem first came up and how,” Weinberg says. “If the problem was water intrusion, the architect could also draw a section showing that a threshold was missing or [that] the flashing wasn't done right,” he says. “Those visual aids are wonderful in educating the mediator about where the problem lies.”
On the day of reckoning, mediators differ in their preferences for giving the two parties face time initially or keeping them totally separate. Regardless of the setup, the mediator signs a confidentiality agreement with both sides that allows him to learn of concerns they might not want to express publicly. So while the mediator can't divulge private information, he can go back and forth between the opponents, making them aware of the weaknesses in their case. And because he's in a position to know more than each party, his evaluation is taken seriously.
Unless a claim has no basis, it's the mediator's job to create a sense of urgency and opportunity, says Mehrdad Farivar, FAIA, a mediator, architect, and attorney with Morris Polich & Purdy, Los Angeles. “You have a chance to settle this case and not worry about it anymore. In cases where the opponents are far apart in terms of their positions, a mediator can make a proposal somewhere in the middle. It's easier for litigants to accept a mediator's proposal without losing face.”
As Farivar points out, greed can backfire. He once mediated a dispute in which an auto dealership sued an engineering firm over the collapse of a retaining wall. The plaintiff refused to settle—perhaps because the defendant had a generous insurance policy—even though an agreement was imminent. Later, when the dealership took the case to court, it didn't get a dime. “Many of these issues that will have to be investigated in detail in court won't have to be investigated if you reach agreement in mediation,” Farivar says. “That's a powerful argument to settle and walk away.”
Edward T.M. Tsoi, FAIA, senior principal of Tsoi/ Kobus & Associates, Cambridge, Mass., made that judgment recently when faced with a six-figure wrongful-termination lawsuit brought by a window subcontractor on a project for the Massachusetts Institute of Technology. As they neared the end of a long day of mediation in what was shaping up to be a no-win situation, the MIT reps and the general contractor were ready to walk away because the sub wasn't budging on the settlement amount. “They all felt that the case had no merit whatsoever, and I did, too,” Tsoi says. But then he considered the time, money, and aggravation that had already been wasted and urged his fellow defendants to figure out how much more money they'd lose if they had to do it all over again.
In the end, the case settled for a quarter of what the plaintiff was demanding. “That's the unfair thing about litigation,” Tsoi says. “It's not just a matter of who's right and wrong. The cost of getting through the process begins to play a bigger role than the substance of the argument, and you have to be aware of that. I felt the day was worthwhile because we did get it off the table.”
Mediation doesn't always mete out justice. But in an imperfect world, it can be the best way to cut your losses.