United States: Guided Choice: Emerging ADR Trend

As you contemplate your New Year’s resolution, you should consider implementing Guided Choice as a means to resolve some of your company’s more thorny construction disputes.  Guided Choice is an emerging trend in the resolution of complex disputes, and such process will save your company valuable time and money.

As you have likely experienced, most construction disputes settle prior to trial or arbitration.  Preparing for trial or arbitration, however, can be incredibly expensive and extremely draining on a company’s morale.  Guided Choice is a multi-phase alternative dispute resolution (“ADR”) process which enables parties to settle their disputes more quickly, more efficiently and less expensively.  

Guided Choice is a multi-faceted process, epitomized by a robust premediation phase, through which a neutral mediator/facilitator serves as a guide to the dispute resolution process.  The mediator works independently and confidentially with the parties to develop the customized ADR process.  Guided Choice is implemented by a basic agreement to mediate, which is contained within most standard construction contracts.  The key for Guided Choice is getting the mediator involved early in the dispute resolution process before the parties spend substantial dollars and become entrenched in their respective positions.  A skilled Guided Choice mediator recognizes that “one size does not fit all” for the resolution of the dispute; so the Guided Choice mediator customizes the process to comport the intricacies of the dispute, the personalities of the key decision makers and the corporate cultures of the involved companies.

In many instances, a construction mediation is an event for which the parties prepare by exchanging reams or terabytes of documents/data, taking numerous depositions and exchanging Pre-Mediation Briefs, which can be polarizing.  Typically, parties resolve the dispute at the mediation, or they don’t; and if the mediation is unsuccessful, the parties forge ahead to trial or arbitration.  

Guided Choice views mediation as much more than a “negotiation event.”  Rather, the Guided Choice mediator assists the parties in preparing for negotiations, anticipates potential impasses, develops means to avoid those likely stalemates in settlement discussions and designs the most efficient ways to resolve the disputes when those log jams occur.  

Acclaimed Chicago construction lawyer/arbitrator/mediator, Paul Lurie, is recognized as the mastermind of Guided Choice; and he, with a team of talented construction lawyers and mediators, have developed seven core principles for Guided Choice:  (1) obligation to mediate; (2) retention of mediator as early as possible; (3) mediator’s confidential investigation and diagnosis; (4) information exchange; (5) anticipating and overcoming impasse; (6) continued use of mediator after suspension of negotiations; and (7) customizing arbitration for disputes which do not settle.  A brief description of the Lurie group’s seven core principles for Guided Choice follows.  

Obligation to mediate:  In order to trigger Guided Choice, the parties must be required to mediate either, typically, through agreement or operation of law.  Normally, the details of the Guided Choice process are not specified within the contract to enable the skilled Guided Choice mediator to customize the process to fit the particular dispute.  After some confidential pre-negotiation investigation, the Guided Choice mediator, in conjunction with the parties, then develops the detailed settlement process. 

Retention of mediator as early as possible: As stated above, retaining the mediator as early as possible is key to the success of the Guided Choice process.  All too often, parties and their counsel retain a mediator after significant money has been spent on the discovery process, attorney’s fees and expert fees.  At that point, the parties might be ready to negotiate, but they also might be further entrenched in their positions. Under Guided Choice principles, the mediator’s pre-negotiation phase determines when and how the parties will negotiate.  Additionally, the Guided Choice mediator determines what specific information the parties need to exchange before they are ready to negotiate, who should participate in the negotiations and how the settlement process should be designed.  Therefore, the parties should retain a mediator as early as possible.  

Mediator’s confidential investigation and diagnosis:  The Guided Choice mediator works independently and confidentially with the parties to develop the appropriate settlement process.  During this process, the mediator investigates and diagnoses the reasons why the dispute remains unresolved.  Sure, certain laws, facts and expert opinions may serve as barriers to settlement; but a skilled Guided Choice mediator understands the human behavioral factors which might prevent the decision makers from changing their minds.  The Guided Choice mediator can identify these issues of personality, risk tolerance and corporate culture which might impede resolution.  The Guided Choice mediator can then design the dispute resolution process to avoid or bypass such potential impasses.  

Information exchange: In order to make a sound business decision whether to settle a dispute, the parties must have sufficient information to base such determination.  The Guided Choice mediator can assist the parties in identifying what vital information needs to be exchanged, in an expeditious fashion, in order to settle the dispute.  For example, with the Guided Choice mediator’s direction, the parties might agree to postpone the expensive exchange of “electronically stored information” during the negotiation phase.  The Guided Choice mediator can help the parties in pinpointing the crucial information, which needs to be exchanged, to enable them to settle the dispute.

Anticipating and overcoming impasse:  The parties should embrace a settlement process which focuses on avoiding and overcoming impasse.  The Guided Choice mediator’s creative talents come to the forefront in identifying potential impediments to settlement and then customizing the settlement process to bypass those causes for stalemate.  As referenced above, personalities, corporate culture and other human behavioral factors are just as important as the facts underlying dispute.  The Guided Choice mediator can use impasse-breaking tools, such as referral to an expert for a non-binding ruling on a disputed issue, to overcome the stalemate.

Continued use of mediator after suspension of negotiations:  The parties must recognize that impasses in negotiations are normal; however, such stalemates do not create reasons to completely terminate settlement discussions.  Guided Choice requires a continued commitment from the parties to utilize the mediator even when negotiations are suspended.  The Guided Choice mediator can help the parties get back to the negotiation table. 

Customizing arbitration for disputes which do not settle:  Some construction disuptes simply do not settle; but in order for the arbitration to be successful, the arbitration process must be customized to meet the parties’ needs.  In such instances, the Guided Choice mediator can assist in: (1) selection of the appropriate arbitrators; (2) minimization of discovery costs; (3) simplification of the issues to be adjudicated; and (4) reduction in the length of the arbitration hearing.  The Guided Choice mediator can also remain involved during the arbitration hearing by continuing to explore settlement alternatives with the parties.

Not all mediators will be effective Guided Choice mediators.  The Guided Choice mediator must be willing to utilize creative techniques in order to customize the ADR process.  Obviously, the Guided Choice mediator should have subject matter expertise, such as a construction industry background.  The Guided Choice mediator should be trained to investigate and diagnose the actual causes of impasse, and this person must be skilled in identifying the emotional components which create impediments to settlement. The Guided Choice mediator must be a good promoter throughout the process.  Besides having subject matter expertise, the Guided Choice mediator must have sufficient litigation or arbitration experience to be able to understand the procedural issues encountered by the parties.

Most construction executives and in-house counsel do not want to give up control of managing the potential settlement of a dispute, particularly to a third-party neutral.  The Guided Choice mediator is your company’s resource, not your company’s negotiator.  Under Guided Choice, the mediator serves as a guide to designing the ADR process; the company maintains control of it.

Guided Choice is not a brand new process; however, it is gaining momentum, with success in the resolution of construction disputes.  Guided Choice is an emerging ADR trend utilizing best practices in the resolution of disputes.  To learn more about Guided Choice, please refer to www.gcdisputeresolution.com, which contains great FAQs and an outstanding bibliography on Guided Choice.  

Guided Choice offers practical means to resolve construction disputes more quickly and less expensively. In doing so, Guided Choice lowers the stress imposed upon a management team resulting from a protracted dispute.  Your company should embrace an emerging trend and consider utilizing Guided Choice for the resolution of its next complex dispute.  

On behalf of the Construction Service Group and the entire firm, I wish you and your company continued success and a tremendous New Year. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.