ACCL References & Links

How Guided Choice Mediation Results in Early Dispute Resolution

Many ACCL Fellows believe that construction disputes can – and should – be settled earlier, more efficiently, and more effectively by using the principles and techniques of a process known as Guided Choice Mediation. Those Fellows have created this web page to introduce and explain Guided Choice Mediation to others interested in improving the mediation process.

Guided Choice Mediation (“GCM”) focuses on early mediator engagement with parties and lawyers to collectively design a mediation process that overcomes resistance to changes in position using new ways for the parties to look at information relevant to the dispute, and to understand how that information is psychologically interpreted by the decision makers. Key concepts of GCM are:

  1. Parties’ decision makers need to understand whether and when settlement is in their best interests (personally and for their business) as compared to continuing to litigate or arbitrate. GCM addresses this need for understanding using mediation tools that allow the parties to gather information about the causes of impasse. These tools include collaborative exchange of information and privileged meetings of experts. This is done in a pre-mediation phase that precedes settlement negotiation. We call it the Process Facilitation phase.

  2. The earlier the mediator is engaged, the more efficiently they can help the parties understand the issues affecting party positions. Early retention of a mediator can also reduce friction between the parties.

  3. Lawyers often help clients get information using traditional tools like discovery and motion practice. These can be expensive and take a long time. Mediators can obtain information by using their legal power of confidential discussion to diagnose causes of impasse that are not always known to the lawyers from the discovery process. Using virtual Internet tools like Zoom can help get information from and to the parties more quickly. Settlement negotiations after the information gathering phase aka pre-mediation can be live or virtual.

  4. GCM overcomes the resistance of many litigators to using an early hire mediator because the GCM process can help control how and when their powerful information will be learned by the opposition. Everything told to the mediator is confidential and is only be disclosed with permission. The mediator, however, can use their knowledge of the existence of such information to influence the pre-settlement negotiation processes they recommended. This may include the mediator nudging the parties to early depositions of key witnesses and production of key documents. Even if the dispute is not settled, the information learned early during the GCM process can be useful in getting an earlier hearing/trial date and reducing the time and expense of the litigation or arbitration.

  5. Clients must trust the mediation process. Mediators’ early involvement in helping the parties with information gathering, and not during settlement negotiations helps build trust in the GCM process.

To learn more details about the Guided Choice Mediation process, click here.

Many Fellows have written articles about Guided Choice Mediation providing data and suggestions about its effective use. To access these articles, click here.

If you have any questions about using Guided Choice Mediation, send us an email.

Please do not inform us about, and we will not comment on, any of the factual particulars of your matter. If you prefer one of our Fellows would be happy to arrange a phone call. The Fellow would not be providing legal services. Any conversation will be limited to a general discussion of the nature and benefits of Guided Choice Mediation.