Lou Chang has negotiated, litigated and arbitrated construction industry cases since 1974. He has successfully mediated a wide range of construction matters since 1984.
Construction disputes distract and direct valuable time, energy and resources away from positive and productive purposes. Valuable business relationships and reputations are jeopardized. In a business community and in challenging economic times, construction disputes can be particularly wasteful and destructive. Mediation has proven to be a very valuable and effective means of addressing, managing and resolving construction disputes, allowing the principal parties in the construction process to maintain control over the resolution of their disputes. Mediation, when timely engaged and sensitively performed by trained and experienced construction mediators empowers parties to achieve maximum mutually beneficial resolutions that meet their real needs and interests.
Successfully mediated construction disputes have
included single-family residential, condominium, commercial, industrial and government construction projects of all sorts, large and small, simple and complex.
TIPS FOR ADVOCATES AND ATTORNEYS IN MEDIATION
The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential and informal manner with direct involvement of the disputing parties. In representing your client in a mediation, keep these points in mind:
* Meet early with your mediator. Discuss whether all potential and necessary parties have been identified and are participating. Assess whether the mediator can assist in accelerating discovery and exchange of critical and pertinent information. Determine if identification, review and tenders have been made for all potentially applicable policies of insurance and/or surety bonds. Are the parties ready to settle? Are the insurers adequately informed?
* Know your case. Be prepared to give a brief and succinct statement of the critical facts and claims. A mediation session can be a very valuable opportunity to present a summation of your case to the mediator and the other party. Unless your case is a simple one, prepare a concise and focused pre-mediation submission to the mediator to educate and arm the mediator with the critical facts, document excerpts and issues involved.
* Prepare your client. Educate your client about what might be expected from the mediation process. Be clear about your client’s real interests and needs and how they relate or differ from their legal positions and potential outcomes in a contested litigation or arbitration. Be personable and professional. Avoid actions, ultimatums, statements or emotionally hurtful words that may jeopardize the trust and good will of the parties and advocates necessary and conducive to productive negotiations.
* Consciously decide whether your client/representative can be an articulate, effective and active participant in the mediation. Consider who will be the most effective representative participating on behalf of your client. Consider whether your client/representative should make a direct presentation of some or all of an opening statement to the other party(ies). Identify whether there are special, real world business or personal relationships, personalities, procedural problems or other considerations that may impact the negotiations. Consider the emotional and relationship aspects of the situation. Would a timely and meaningful apology or a demonstration of sincere empathy be important to defuse anger or hurt felt by another party? Is it important that the other party have an opportunity to vent and express concerns directly to a key party representative?
* Be creative and open to possibilities. Mediation allows for “win-win” resolutions. You and your client should be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of your client and those the other party(ies) can help to fashion resolutions tailored to meet yours and their special needs and interests.
* Take advantage of the flexibility of the process. The mediation process can be adapted to suit the needs and circumstances of your case. Determine if review and presentation of key information, testimony, deposition exerpts or even expert opinions will be helpful to develop focus on the critical issues and establish the strength of your case. Parties do not need to agree on the facts to settle. The key is that parties appreciate the risks and benefits of various settlement options and how they meet their particular needs and interests.
* Identify multiple options that might be the basis for a mutually negotiated resolution. The more options and components of options that can be identified, the more likely a resolution will be reached that is acceptable to all parties. Many times, solutions are not the ones thought of prior to mediation.
* Identify and understand the strengths and weaknesses of your case and that of the other party(ies). Understand and determine whether the perceptions and motivations of the other party(ies) is driving, helping or hindering the negotiations. Discuss this fully with your client and the mediator. Identify and understand whether missing information, misperceptions and other barriers to settlement and the factors (factual, legal, economic, psychological, personality, relational, procedural) are driving the controversy or blocking progress in the negotiations. Enlist the assistance of the mediator to obtain or arrange production of critical factual information, correct misperceptions and to help parties recognize and remove such barriers. Mediators can help to provide parties with a meaningful reality check.
* Mediation is a dynamic process. Make sure that all necessary parties are participating meaningfully in the mediation, decision makers should have full authority and flexibility to agree to solutions and packages proposed.
* When an agreement is reached, document it immediately before leaving the mediation. At the minimum, have an enforceable agreement approved and initialed by all parties before concluding the mediation. Consider incorporating a dispute resolution or fast track arbitration mechanism to resolve disagreements over “formal” settlement documents.
* Keep the mediator’s role and function distinct from that of an adjudicator. Combining mediation and arbitration functions (med-arb) in a single person is not generally recommended. Parties need to have trust and confidence in the mediator. Mediation works best when no one fears that something said in mediation to a mediator might be prejudicial if the matter later goes before the same neutral then serving as an arbitrator.
* When an agreement is reached, document it immediately. Be prepared to and insist that an enforceable agreement or memorandum of agreement is prepared and signed. Consider incorporating a fast track dispute resolution process, such as appointing an arbitrator to resolve differences over language of settlement agreements.
Parties maintain a greater degree of control over the outcome and resolution of their conflict and usually with substantial cost and time savings of cost, time, opportunity costs and aggravation. When parties are willing to mediate in a good faith attempt to search for resolutions to mutual problems, they nearly always succeed.
Lou Chang can be reached during the following hours: Mon-Fri 8 AM to 6 PM
Sat 9 AM to 3 PM
A Law Corporation
(Licensed in Hawaii)
PO Box 61188
Honolulu, HI 96839
Phone: 808 384-2468
Fax: 808 951-0888
Or use our contact form.
Note: Lou Chang is licensed to practice law in the State of Hawaii and in no other jurisdiction. The information provided in this website is not intended to be the provision of legal advice. Contacting the firm, Lou Chang, ALC does not create an attorney-client relationship and confidential information should not be sent until such relationship is established and confirmed in writing.
Areas of Practice
Business & Commercial
Real Estate & Property
Construction & Design
Labor & Employment
Injury, Liability & Insurance
Franchise & Licensing
Banking & Financial
Hotel & Hospitality
Click here to see examples of cases handled by Lou Chang.