By William M. Coats

During the past 10 years, it has become the rule rather than the exception to mediate construction lawsuits.

Many standard form documents, including the AIA's, require mediation as do the majority of judges where construction cases are filed.

Those who have had unsuccessful mediation experiences often see the process as an expensive prerequisite to final consideration of the case by a court. But skepticism about the mediation process only serves to deprive you of the opportunity to reach an early conclusion of a lawsuit without the expense and hassle of a trial.

The fact is that mediation works in the vast majority of construction cases, and it is here to stay in Texas. Just as you should participate in every other stage of the litigation process in order to protect your rights, you should fully participate in the mediation process.

There are several basic points that can be made about mediation of construction cases.

Insist on a mediator with some knowledge of the construction process If there is a single common factor in the mediations that I have handled that have not been successful, it is that the mediator had little knowledge of the construction process and construction law.

Some mediators have experience with medical malpractice cases or other tort cases but do not have the background to separate the wheat from the chaff when it comes to construction issues brought up during mediation. A strong construction law professional acting as a mediator has the ability to spot and discuss weaknesses in both parties' cases that can lead to the moderation required to reach a settlement.

If your counsel does not know a good construction mediator, the State Bar of Texas Construction Law Section maintains a list that can be used as a starting point.

Be prepared Most construction cases are factually complicated, and it is important to come to the mediation with an organized summary of your position in the case to present at the opening session. A good way to present this type of summary is with a PowerPoint presentation using excerpts from the key documentary support for your case.

It is often a good idea to furnish the mediator and other parties with a written summary of your position so that your arguments are readily available to the other side throughout the entire mediation.

There is a misperceived downside that by fully educating the other party about your case during mediation, you may be giving up the element of surprise at trial. The fact is that there is little surprise at trial on the main issues of construction cases due to the extent of document discovery that occurs in modern legal practice and the extent to which facts of construction disputes are dependent on the contemporaneous documentary record of the project.

Listen You can learn a lot about the potential weakness (or strengths) of your case from the other party and from the views expressed by the mediator. This information can be invaluable in deciding whether or not to settle the case at various levels, and in the preparation for trial if the case does not settle.

Think before you speak The mediator is interested in putting a settlement notch on his stock; he is not interested in maximizing the result for either party. When you disclose a "bottom line" to the mediator, you can be assured that he will not work hard in the other room to reach a number above (or below) that. The moves in position that are disclosed to the mediator should be thought out by your team before the mediator is advised of them.

Be patient The moderating necessary on both sides to reach a settlement takes time, sometimes several days. Let the mediator continue to work as long as he thinks the process is not wasting time.

Consider mediating more than once I am a proponent of early mediation, before large legal expenses have been incurred by either party. If that doesn't work, consider mediating again when the facts are further developed.

Trials are expensive, construction cases doubly so. Fully mediated cases settle out of court more often than not, but that outcome requires full participate in the mediation process.