It Ain't Over 'Til It's Over
Every successful mediator knows that patience is not only a virtue, it is a must. And those who mediate construction disputes also know that nothing rings truer than Yogi's most oft-quoted sportism: "It ain't over 'til it's over." 
And there are mediations in which good-faith settlement negotiations narrow the gap between the parties until they reach a deadlock. Neither party will budge and the mediation goes into scoreless, extra innings. Then, unexpectedly, out of left field, a unique proposal, one that no one had previously thought of, is put into play. A deal is made and the day is saved.
So mediators with the highest batting averages do not despair. They maintain an optimistic demeanor, keeping the players in the game and the ball in play. Experience has taught them how prophetic Mr. Berra's words are.
The dispute was between a general contractor and his subcontractor. Each had submitted a bid for the repainting of a steel bridge that supports a section of the West Side Highway adjacent to the Hudson River in New York City. When the GC's low bid was accepted the Sub sought from him, and received, a subcontract for the containment of span segments that were to be sandblasted prior to repainting.
Work commenced and problems developed immediately. The GC claimed that the Sub was not containing sections quickly enough. The Sub countered that the GC would not let him move his containments until the painting subcontractor had completed the portion of the span under containment, a restraint he had not contemplated in his subcontract. Neither would give ground on this issue and the job bogged down.
After several unheeded written warnings to the Sub to cure his violation of their subcontract or suffer the consequences, the GC terminated the Sub, confiscated his equipment and materials and proceeded to do the containment work himself. The lawsuit was filled soon thereafter. Before it went forward the Judge, in his wisdom, detoured the case to mediation.
As in sports events, emotions sometimes run high in construction disputes. But when the parties and their representatives convened for the so-called "public" mediation session, emotions were at a level beyond anticipation. The principals, relatively recent arrivals in the US, were from eastern European countries that had a long history of bad blood that apparently had not been purged in cultural "melting pot" that has characterized the present domestic construction community. But whether ethnic, personal or an animosity born of their business relationship - or all of the above - it was palpable from the moment they entered the room. Such overt contention, however, does not discourage, nor deter seasoned mediators. Beyond honest emotion, they also know that players in the construction industry are savvy and creative negotiators, who may posture and play-act - like athletes - for some perceived advantage.
The body language of the GC and Sub during the other's presentation and their questioning of each other were unfriendly to the point of open hostility. The storm clouds were gathering but the mediator detected that a couple had a silver lining. During their exchanges each displayed a sense of humor; an encouraging sign in any mediation.
Later on during separate caucuses with the mediator each acknowledged that its own performance might not have been 100%. But both insisted, "The other guy was trying to screw me." And while each wanted the dispute to go away and to be put behind him, and each lowered its monetary demand to an almost nominal amount, neither would agree to a 'wash.' Both demanded a pound of flesh - some money - to prove to the other guy (and himself) who the real culprit was.
Alone with the attorneys the mediator was not surprised to hear the attorneys agree that a settlement, not a trial on the merits, was in their client's best interest. Each would support a "no -decision" settlement whereby no money would exchange hands. But they also agreed their clients would not go along with such a no-win resolution.
When the mediator reminded the attorneys that the essence of success in the construction business is repeat business and the long-term, on-going relationships between members of the industry - one of the biggest incentives to avoiding construction disputes and in settling them amicably - they responded in unison: "These guys would never work together on another job." "In fact," said the GC's attorney, "my guy got so soured on this project that he's out of bridge painting and now has a thriving business building low-rise office complexes."
on the Field
Within ten minutes they reentered the room, both smiling. "We made a deal."
Ain't Over 'Til It's Over"
Construction Mediation Inc.
Copyright © 2008 Construction Mediation Inc.