Revise your contract’s Mediation Clause

Most Mediation Clauses simply state that the parties to a dispute will use good faith efforts to settle that dispute with mediation. Sometimes the clause will also set forth the person/entity that will act as the mediator (for example, the American Arbitration Association clause). Other clauses state that all binding disputes will be stayed for a period of time while mediation progresses (for example, AIA A201-2017 §15.3.2). However, the most important point that is rarely, if ever, set forth in a Mediation Clause is the requirement that decision makers be required to attend and participate in a mediation. It is true that a good mediator may mandate that decision makers attend the mediation, but why take that chance? Instead, modify your Mediation Clause for each of your projects to list the persons that have decision making responsibilities. Then, just in case that person(s) leaves the project, also list their job title separately as an alternative. Thus, your revised clause will read, “John Doe and/or the Project Executive will be required to attend and participate in all mediation sessions.”A good construction lawyer can assist you with drafting a well-written mediation clause that allows claims to be resolved amicably and business relationships to continue.

Stephen Bialkowski

Stephen Bialkowski, Esq. is a member of the firm and a Litigator and Transactional Attorney practicing in the areas of construction, real estate, real estate development and business law.