Mediation Philosophy

Mr. Madden has developed a unique and highly successful mediation philosophy known internationally throughout the construction industry which he summarizes as his “Recipe for Success” in Construction Mediation: C-A-K-E.

C is for Commitment to the Mediation process.

The higher the level of commitment to the mediation process, the higher the likelihood of success. Commitment is demonstrated by active participation in the process and following the Mediator’s lead. Commitment also involves commitment to engage in the level of voluntary document exchange in preparation for the mediation, preparing a Pre-Mediation Statement, having the right people come to the mediation and having an open mind and willingness to listen.

A is for Authority to settle on behalf of a party.

The key decision-makers who have authority to settle need be in the mediation room during the mediation and be able to execute a Settlement Agreement without having to obtain further authority from someone not present. Presence in the mediation room during the discussions invariably enlightens the key decision-makers on the true facts in the dispute in a more complete and useful context.

K is for Knowledge of the project and details of the dispute.

What happens on the job is typically one of the most (if not THE most) important inquiries to be discussed during the course of the mediation. A Mediator with subject matter experience is best suited to facilitate such a discussion. It is crucial to have in the Mediation room the people who have first-hand knowledge of the project and the events that transpired. The people with this knowledge can share with the decision-makers for all sides what actually happened during the course of the project, when it happened, and what the impact the events had on the project.

E is for Expertise to deal with the technical issues at the mediation.

It is important to have in the Mediation room the people with the expertise to deal with the technical issues that may arise during the Mediation. They can be hired experts or people within the parties’ organizations. People with the ability to provide a financial analysis can help the decision-makers reach financial terms that they may be able to accept.

SUMMARY

C-A-K-E — If each party brings each of these four ingredients into the Mediation room, the likelihood of a successful resolution is exceedingly high.

It is the art of the Mediator to assure that the parties understand what it takes to get each one of these elements into the mediation room and to commit to do so and then in fact have all of the elements in the room at the mediation. Through gentle persuasion and continuous administration by the Mediator’s staff in the run-up to the mediation, the parties are assisted in preparing for a mediation with each of these elements in the room.

The art of the successful mediator is also to recognize for each party the particular circumstances that promote realistic delivery of each one of these elements of the recipe.

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