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.

Similar Articles
Relevancy Powered by MondaqAI
Foley & Lardner
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Foley & Lardner
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions