Construction disputes seem inevitable. The reasons for this are manifold. In recent years alternative methods of dispute resolution, as an alternative to the court process, have been developed and discussed. Mentioned here is in particular mediation, which was initially applied mainly with success in family law disputes. Increasingly, the implementation of mediation shall be considered for construction disputes.
Mediation Process to Build Expertise
As our own experience shows, it is not sufficient in a number of cases when the mediator appointed by the parties moderates conflict resolution. Especially complex and extensive construction disputes require an objectification of the facts, in particular technical, construction management and legal expertise and experience. This knowledge is, however, in the mediation process and not in the foreground. Mediation is rather largely understood as meaning that the consensus principle is overlaid by the clarification of the issues.
Practice shows that the parties of large building projects are usually in the position and also bring a willingness to discuss contrarian positions with each other. However, it often requires a third party that connects no economic interest with the construction project. After all, a project manager for a construction company or a project developer / builder, has in mind the project’s success for his client. Moreover, there are large construction sites with project personnel on both sides that often lack information, as the specialists involved often feed the present managers with facts from their own perspective.
Even in the professional circles of mediators this problem is discussed. Increasingly, a "distributive negotiation approach" and a so-called "specialist advisory mediation" for technical and/ or legally complex disputes is recommended. Therefore in addition to the mediation of construction disputes, the established and accepted principles of settlements increase.
Our settlement rules may be downloaded here (in German):
