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." [1]

"Games People Play"
Many mediations are on a path to settlement from the opening inning. Others seem destined for a rainout; dark clouds gather as each side pitches its case to its opponent and the mediator. Sometimes the parties create an atmosphere of gloom and doom on purpose. They disguise their inclination to settle in hopes of getting the best deal they can. Dismissing any proposal put on the table as wholly inadequate, their counter-proposals seem just as unrealistic. Yet when one frustrated party or the other serves up a "final" offer in the top of the ninth, one that seems to be no where in the ballpark, the other side accepts and the mediation is 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 Players
In March of 2001 a construction lawsuit before the New York State Supreme Court was remanded by one of its Justices to the Court's "Mandatory Mediation" program. [2] Thereupon, the Court's ADR coordinator selected, subject to the parties' approval, a mediator from its lineup of neutrals, one who had expertise and a track record in the subject matter of the dispute. The parties had 45 days to appear before the mediator.

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.

"Play Ball!"
Prior to the first mediation session each party, as required, submitted copies of its pleadings and a "memorandum on the case" to the mediator. It was clear from the submissions that each side was thoroughly convinced of its entitlement to monetary damages of almost equal magnitude. It was not a situation where one party believes it owes the other less than the other seeks, a scenario more susceptible to a mediated settlement than the case at hand.

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.

An End Run
After a series of such caucuses, all of which ended at the same impasse, the mediator tried another tact. He reconvened everyone and then asked to meet alone with the attorneys, requesting that the GC and Sub wait in an adjacent room. Not only did the mediator have some questions for the attorneys, he thought that if the two principals were thrown together and left to their own devices, they might deflate their bravados, swallow some pride and find a way to resolve their differences.

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."

Back on the Field
The GC and Sub were called back into the mediation room for what most surely thought was the final time at bat in a losing mediation. They were more cordial toward each other but obviously had not overcome their differences. The mediator proceeded to sum up all that had transpired and was laying out, once again, the costly road that lie ahead if the mediation failed when suddenly the GC sprung from his seat and asked the Sub to join him outside the mediation room. The attorneys looked at each other in shock. The mediator's instinct told him a resolution was in the works but did not know what triggered it.

Within ten minutes they reentered the room, both smiling. "We made a deal."

"It Ain't Over 'Til It's Over"
When the mediator noted during the summing-up that he had learned the two were no longer competitors, the GC had an epiphany. He thought about all the bridge painting equipment that was lying idle in his storage yard. Out in the hall he had offered the Sub a piece of equipment of his choice if he agreed to end the matter; each would go his separate way otherwise empty-handed. The Sub knew exactly which piece he wanted and accepted in a heartbeat. The matter was over; a game ending home run for mediation in the bottom of the thirteenth. The GC gave away a piece of equipment collecting cobwebs that the Sub would put to good use in his expanding bridge painting business. Monetarily a "no decision," but both sides thought they won the game. A win-win mediation that wasn't over until it was over!

Notes:
[1] Yogi's response to a reporter's question in 1973 when the Mets were nine games out of first. They went on to win the National League Championship in a sudden death series with the Reds. (Yogi's still at it. Accepting an honorary Doctorate from Roger Williams University, he told the Class of 2001, "You have a great future ahead of you, even if the future ain't what it used to be.")
[2] An upcoming article will examine the present state of Mandatory Mediation, the beleaguered stepsister of voluntary mediation.

Gary Morgerman
May 2001, New York City

Construction Mediation Inc.
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New York, NY 10024
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