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Mediation By Jennifer Grippa When a construction project goes awry, costs can quickly escalate given the number of stakeholders, insurance policies, and third-party claims involved. But most construction disputes can be resolved without the need for protracted litigation. With narrow profit margins, many construction companies do not have the appetite for costly and time-consuming litigation. Implementing these simple strategies for your next mediation will best position your client’s dispute for a successful settlement and you for one happy client. Early Mediation Mediating a dispute early, even before litigation ensues, can keep time-sensitive projects moving, restore working relationships needed to complete a project, and has a positive impact on a project’s Jennifer Grippa, Esq. Miles Mediation & Arbitration Services 6 Concourse Parkway, Suite 1950 Atlanta, GA 30328 Tel: +1 678 320 9118 Fax: +1 404 389-0831 Email: jgrippa@milesmediation.com 22 | www.atlantaattorneymagazine.com bottom line. In fact, there is little reason not to mediate before time, money, and energy is invested in a lawsuit. Mediation can be an opportunity to get more information about a dispute, size up the opposing party, and better assess the strengths and weaknesses of the case before embarking on a path to the courthouse. While a candid exchange of facts and records can be helpful, discovery does not need to be complete before the parties mediate. Information you learn during mediation might lead you to discover new witnesses or third parties that should be subpoenaed. Strategically, it may be better to mediate well before the close of discovery to allow sufficient time to complete discovery and adequately prepare for trial. Coverage Disputes Construction disputes often involve insurance claims and if there are coverage disputes at play, consider whether there is an advantage to resolving those before mediating. Having closure on coverage will impact settlement. If resolving coverage is not feasible, a coverage opinion can be a powerful tool in creating settlement leverage. Where there is no coverage, it can seriously impact the parties’ willingness to compromise and test their resolve for litigating the case. The Mediation Brief Do not underestimate the power of a persuasive mediation brief. This is a rare opportunity to communicate directly to the adjuster without the filter of your adversary. A bound, polished and professionally prepared package with a thorough analysis and supporting documents sends a message to the opposing counsel and insurance company that you are prepared, confident, professional, and will be powerful at trial. Anticipate your adversary’s points and address those as well. Send it one to two weeks in advance to give the adjuster time to analyze it. Your trial experience and track record will be considered in the analysis of whether to settle. A well-prepared and professional brief demonstrates your experience, professionalism, and confidence, and will create leverage for your client in getting the best settlement possible. Prepare your client Client readiness to settle is key. Talk with your client not just about the value of the case, but also your mediation strategy. Make sure the client understands some demands or offers may be extremely high/low and there will be times when positions need to be compromised. The more prepared your client is, the less likely they are to experience anger or discouragement with the process. Advise them what to expect from your adversary. Avoid surprises and make sure your client knows in advance what the opposing counsel will likely say. An antagonistic joint session does not bode well for an amicable resolution, but if your client is well prepared, their adverse reaction will be tempered. Create a plan in advance Where multiple defendants are involved, counsel should talk in advance and try to coordinate a plan. Discuss whether the defendants should negotiate
as a group or make a joint offer of settlement. See if an agreement can be reached beforehand on a contribution percentage. Should plaintiff make one demand to the entire defendant group and let the defendants divide it up? Using this strategy can at least advance the process and get the offers moving where there are several parties all disputing liability. Pre-Mediation Caucus Have a pre-mediation call or meeting with the mediator. While many litigators overlook this opportunity, it can be very effective in furthering the settlement process. There is no requirement that lawyers refrain from ex parte contact with the mediator. In fact, this type of discussion is often very useful in framing the issues, bringing the mediator up to speed, and informing the mediator of any personality dynamics that could be at play. Giving the mediator early insight can help determine the right structure for the mediation and possible options for settlement. Meeting in advance also gives interested parties the chance to be heard and reduces the amount of down time during the mediation. Settling Parts of Cases Separating the issues or separating claims against different defendants and resolving them one by one can be effective in multi-party situations, particularly where one or more defendants are motivated to settle and others are not. Settling part of the case impacts the remaining defendants and this tactic is sometimes used to create leverage to get the remaining parties to settle. Issues to Negotiate Construction disputes bring their own unique issues to be considered during negotiations. Aside from the payment of money and a release, parties should consider how to address: • The release of liens • Payments and corresponding lien waivers • Whether warranties will remain, and if so, how they will be handled • Handling indemnity claims • The impact on other litigation • Contingent liability for future bodily injury or property damage claims • The impact of a release on completed operations coverage • The impact on other business or projects between the parties • The transition following the termination of parties • The details of future work to be performed • Which policy, or to what types of coverage, will the loss be assigned? This could impact exhaustion and may be important if the policy re mains available for other claims. EDITORIAL SPONSORSHIP FREQUENTLY ASKED QUESTIONS What is Education-Based Marketing? Education-based marketing is a type of content marketing that has become popularized in recent years. As you know, content marketing is the attempt to distribute content (articles, stories, blogs, information) in the hopes of connecting with potential customers or referral sources. As the content is not promotional, the reader retains the useful information and begins to forge a positive bond with the supplier. Education-based marketing is a subset of content marketing. This form is – as the name indicates – educational. This type of marketing involves the creation of informative content by the company in the form of an article that is distributed to potential consumers or referral sources. Since the article is helpful to the consumer, they begin to forge a positive relationship with the provider. Additionally, the recipient views the author – especially over time – as an expert in the topic. Buy a Law Firm Ad $1,500 Bonus One Page Article Included. VOL. 6 ISSUE 3 ATLANTA ATTORNEY MAGAZINE | 23
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