There is painfully too much contentiousness in this world, and the realm of construction seems to be particularly contentious. So many people seem to equate construction with conflict. Many people believe that to be involved with a construction project is to automatically be involved with battle and the worst of human nature. Both construction professionals and customers frequently come armed with attorneys at the ready call.
All too often, before a project even starts, there is poor agreement, lack of clarity among the people involved, lack of sufficient documentation, and importantly, a lack of sufficient trust.
Commonly, people entering a construction project don’t seem to pay enough attention to the “softer side” of the human equation. They do not really deal with emotions, expectations, hopes and assumptions, and therein lies a lot of fertile ground for conflict to grow. Once conflict and distrust rear their heads, things can sour and fester quickly if not addressed rapidly and with skill.
A wise and welcome practice known as “construction partnering” has been developed within the recent past to counter such descent into turmoil and dispute. Partnering was formally developed for commercial and municipal projects, but the principles apply perfectly well to smaller scale construction.
In a nutshell, all key players in a project meet and receive training before any work starts in working together in intentional collaboration and mutual commitment to success for the project. They have the opportunity to make known concerns and desires, while also learning protocols for working together and communicating clearly. Partnering has been an excellent development.
Emotions, expectations, hopes and judgements, colored by past experience and messages, can be hugely influential.
As was alluded to at the beginning of this article, construction conflict can readily turn into legal conflict and be put into the hands of attorneys to do legal battle. And it is a battle! Usually everyone comes out scarred, even if a judge or jury decides in one side’s favor, because the mental and emotional pain and strain, not to mention the financial drain and strain can be felt for years.
Mediation can lend itself very well to construction disputes, with some great benefits. A good mediator sets ground rules for discussion and exchange, and the different parties involved are given the chance to speak and be heard in a way that they have not been able to achieve on their own. The mediator helps create and hold a safe space that encourages good listening and openness, along with the opportunity to speak. Oftentimes, as the parties come to trust what is truly a sacred space in mediation, they feel acknowledged, and emotion lessens and defuses. They can start to breathe better and see some daylight.
There are traditionally three types of mediation recognized in the field, although some people feel there are more. The long-recognized three formats are facilitative, evaluative, and transformational. With facilitative mediation, the mediator focuses on helping the parties have discussion and hopefully come to an agreement that has benefits for both “sides.” They are really the crafters of their own agreement. With evaluative mediation, the mediator acts as evaluator of the positions and evidence of both sides and offers their opinion as to how a judge would decide. This format leans more toward the legal side, and the mediator is more directive than in the other styles. With transformative mediation, the mediator allows for much more free-flow conversation, which can get pretty hairy! The mediator’s approach is quite hands off, while they track everything going on. The parties involved are given the most freedom of expression, including emotional, of the three common types of mediation.
It seems that many mediators blend styles to some extent and learn to trust their own style, comfort level, and intuition. Some mediators object to this reality, but in general I see nothing wrong with it. There also seems to be a continuum of how directive mediators are, with traditional training for being neutral leaning firmly toward little or no directive approach. The general guiding principle, though, is that the mediator is there to help the parties hold a progressive discussion, culminating in their creating their own resolution, with help. One great question to ask disputants who are stuck is, “Would you like to hear what some other people have done in a similar situation?” That is one good example of offering help, with it still being up to the parties if they want to hear it.
Being aware of subtleties, such as apparent discomfort, closed posture, sudden averting of the eyes, and so on, can be very important in mediation. Conflict is emotional, and sensitivity to emotion that is present can help the mediator tune in to the parties in the mediation and frequently key in on crucial underlying aspects of the conflict. Many times, the conflict presented turns out to be as much or more about an emotional aspect, such as a sense of broken trust, great disappointment, or moral injury. That said, typically construction disputes present as claims of poor workmanship, and/or financial conflict, and those are very important.
This mention of sensitivity to nonverbal and subtle cues leads to how a mediation session works. The beginning process can vary depending on the complexity and nature of the conflict. The mediator needs to acquaint himself or herself with the conflict itself, as well as the parties involved. This introduction can take place in different ways. It might start with one party getting in touch with the mediator and talking in person or on the phone or on Skype. It is important to help both parties feel that they are being given equal attention and that the mediator is not starting off taking sides. This is crucial!
In a complex and/or technical or legal dispute, both sides will likely have documentation and written summaries of their position that they provide to the mediator prior to beginning the mediation session. This would be particularly true in a large, detailed construction project. The mediator should invite the parties to provide this information ahead of time. In reviewing this information, the mediator has a more detailed sense of the background of the dispute. The process can essentially be the same for smaller scale disputes, too, and the mediator could well request brief summaries and documentation from both sides prior to any mediation session. It should be noted, though, disputes are so much about the “human end” of the working relationship and its breakdown, which is one of the underlying themes of this article.
Regardless the size, nature and complexity of any project and the associated dispute, it always comes down to the people involved. It is about their interpretation of where the dispute started, what it means to them, and their idea of resolution.
Mediated disputes might be resolved within quite a short time, or they can go on longer. Small claims court construction disputes brought to mediation frequently resolve within an hour or so. Commonly, the time frame expands with the size of a project and the particular conflict. Sometimes there are time and availability constraints for the people participating, and time-limited sessions may be carried out over successive weeks.
It is accepted practice that the participants sign an agreement to mediate, which says they are voluntarily engaging in the mediation process, which is confidential. This agreement may also include a statement that the parties understand there is no guaranteed outcome. Typically, the mediator’s fee and possible expenses are split between the people in the mediation. This is worked out ahead of time.
The parties meet together with the mediator, with respectful instructions to listen carefully to each other and not interrupt, and to be ready to jot down thoughts, questions and new possibilities that come to them. Everyone has the chance to speak and be heard. The mediator listens to a brief summary from each participant about their take on the dispute and what they hope to achieve in mediation.
An important part of the mediator’s role is to keep a spirit of possibility and positive spirit. They know that frequently in mediation, as the disputants have a chance to air what is inside them and listen to the “other side” with a neutral person present who is guiding the discussion, unexpected avenues toward potential settlement arise. They encourage the parties to be open to this occurring. The mediator asks questions for clarifications and often gives a brief summary of what they have heard to make sure they have heard and understood correctly.
At times, the mediator feels they need to have a private discussion with one party, and the other party is asked to wait somewhere else during this time. In the opening description of the process, the mediator lets both parties know that this could happen. The mediator also likely states right off that they want the agreement from the people involved to step in and redirect or halt talk if they feel it is getting off track or inappropriate. These steps are common practice and part of the process.
The mediator is trained not to take sides, but they also want to keep an eye out for perceived fairness in what transpires. If they question fairness, and if, for example, one person seems to be giving in because they feel intimidated, the mediator can check this out in private with that person. On the other side of that example, the mediator could ask to speak in private to a participant who is trying to dominate, which is really not helping themselves or the potential for agreement. The mediator is working for both sides, and their wish is to help the people involved air their grievance clearly and fully, and hopefully come to a resolution that works for all parties concerned.
Several paragraphs back it was stated that disputes always come down to the human beings involved, no matter what the details and complexity. Along this line, it is not at all unusual that emotional wounds surface, along with perceived slights, deceptions, and breaches of different sorts. Often, the participants finish a mediation procedure being a little expanded as a human being and leave lighter and with new perspective.
A heart-centered mediator wants to work right in the hearts of the parties. To paraphrase master heart-centered mediator Ken Cloke, you want to aim for the heart and work in the heart, “because the heart is where it is at.” The heart is the seat of the emotional substance, both positive and negative. It is where healing, forgiveness and compassionate understanding can arise from. It is where honest remorse can arise from, too, which may play a significant role in the emergence of resolution, and it is where kindness lives. Often enough, when people in dispute relax enough during mediation, one or both (or more if more people are involved) say, “You know, I am just tired of this dispute. I really would like to move beyond it.” If one person says that, the other side usually agrees.
On one level, mediation is about the “facts,” but the perception of the “facts” can differ so much between people in dispute that the mediator might honestly wonder if they are talking about the same circumstances. Resolution may on the one hand be about working out some very grounded details of financial and restorative settlement, but on a deeper and important level it is about something far beyond the “facts” and details. It is hopefully about a little or a lot of healing for the people in conflict.
In their opening instructions and stated guidelines, the mediator may urge the disputants to try to be on the lookout for judgments and assumptions they may have, because judgments and assumptions can contribute greatly to the development of dispute!
In mediation, the parties are the crafters of their own agreement of resolution, with help and clarification on the part of the mediator. This is really so much more desirable than a protracted, expensive and stress-promoting legal battle. In a very real sense, many times no one really wins in a legal dispute because of the various high prices, not the least of which are heartache, stress, and possible effects on health.
In summary, construction disputes can be excellent candidates for mediation with a strong chance of achieving a much more comfortable settlement that serves all parties involved. And while it may be true that commercial and municipal construction disputes are more about the money and practical resolution, the heart-centered approach can be a big plus in mediation here, too.