Mediation is often a good idea, but only if it is “ripe.” An unripe mediation can leave a bad taste in your mouth. Have you ever tasted an unripe persimmon? Not only will it drain all the moisture from your mouth, but you may never want to try one again – the tannins of the unripe fruit are very bitter. However, having tasted one ripened to perfection, you will certainly want more. The same is true of most fruit and of your experience with mediation.
Assuming your construction contract includes a mediation provision and you just received a letter from a subcontractor requesting mediation, how should you respond? Since the contract obligates you to mediate, you should agree, right? Yes, but the contract and the request may not account for a pre-mediation exchange of information to ripen the dispute before a mediation session. Mediating without a reasonable understanding of each party’s position and the relative risks and rewards of settlement is like tasting an unripe persimmon – it will drain the good perspective that you had for mediation and you may never want to mediate again.
But how will a pre-mediation exchange of information succeed? After all, the dispute probably arose because the parties couldn’t or wouldn’t work together through normal project procedures? How then can the parties expect to ripen the dispute for mediation?
With time, the gradual exchange of information, a willingness to consider both giving and taking, and maybe the help of a third-party, the parties will understand that resolving the dispute now will likely save time and money later.
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim for time and money.
On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
