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.
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Jonathan J. Straw
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