What Lawyers and Clients Are Looking For in Commercial Mediation

What the ABA Says Lawyers and Clients are Looking for in Commercial Mediation                         

(Originally published April 28, 2008 in the San Diego Daily Transcript )

Lawrence Huerta

For the sixth time in the last eight years, in quest of innovative ideas to make my mediation practice the best it can be, I attended the American Bar Association (ABA) Dispute Resolution Conference in Seattle, Wash., this month. The most important ideas I came away with from this conference concern what the ABA has found repeat users of commercial mediation are looking for from mediators, and the emerging increased use of dispute boards.

The best and most interesting presentation at this year’s conference was done by panelists who had recently served on the ABA Section of Dispute Resolution Task Force on Improving the Quality of Mediation and published a final report. The task force had conducted focus group interviews and surveys from around the country, interviewing lawyers and frequent users of commercial mediation. This was the first mediation industry effort of its kind conducted to learn about what frequent users and consumers of commercial mediation services believe enhances the quality of mediation services, and what detracts from delivery of quality mediation service.

The focus group participants from various locations around the country consistently identified the same four issues as important for mediation quality:

1. Preparation by the mediator, parties and counsel;
2. Case-by-case customization of the mediation process by the mediator;
3. Analytical assistance from the mediator and;
4. Persistence by the mediator, including follow-up.

The full final report of the Task Force is available for viewing at www.abanet.org/dch/committee. cfm?com=DR020600.

The other new and most significant idea of the conference was the increasing use of dispute boards on large construction projects worldwide (typically in excess of $20 million projects), particularly overseas. Dispute boards are increasingly being used proactively and immediately when disputes in construction arise, rather than waiting to compound the size and amount of potential disputes in the future. Dispute boards are being designated within the construction contracts, and even paid for by the parties as part of the construction contract.

When disputes arise, dispute board members travel to the site to inspect, hear from the parties and make recommendations that the parties then consider how to implement themselves. The compelling interests and satisfaction generated in early resolution and the prevention of larger disputes from arising has apparently resulted in rapid increased use of dispute boards, particularly in construction of large infrastructure projects worldwide. The construction industry is coming to the conclusion that early dispute resolution is the best and most useful dispute resolution, and is now considered a best practice in large construction projects. This is illustrative of the economic benefit and utility that early, innovative dispute resolution can bring.

The success of dispute boards is a positive sign for the future of the alternative dispute resolution (ADR) industry and the potential benefit innovative applications of ADR services can generate for ADR service users.

For more information about the mediation services provided by Huerta Mediation, visit our Web site at www.HuertaMediation.com, or telephone us at (619) 236- 7944.  April 28, 2008