Construction law disputes are highly technical matters. They often involve multiple parties –property owners, contractors, design professionals, general contractors and more – and multiple claims.

Mediation carries strong appeal in these disputes because attorneys and their clients can capitalize on several benefits they would not have in litigation.

Time-Efficient, Cost-Effective, and Flexible

In most cases, attorneys and their clients will invest far more money and time litigating a construction dispute than they would by mediating it, and they will have far more flexibility in arriving at a resolution than a courtroom would ever allow.

Attorneys and their clients can use mediation to narrow the issues or resolve all issues through a process controlled by the parties and their willingness to negotiate. Because parties control the outcome of their mediation, they also control how long it will take to reach that outcome.

Neutrals Experienced with Construction Mediation

Parties that elect to litigate a construction dispute will eventually go before an assigned judge, but this judge may not possess requisite, practical knowledge of the nuances involved in construction disputes.

In contrast, parties select a neutral to mediate their dispute. The mediator can and should have hands-on, thorough knowledge of the technical dynamics at play in construction law disputes, along with a working knowledge of the Illinois Mechanics Lien Act, 770 ILCS 60, which protects the rights of contractors and subcontractors to receive payment for their services.

Working through a dispute with the facilitation of a mediator familiar with the construction industry and construction law can promote more creative solutions grounded in the unique complexity of construction disputes.

Confidentiality

When mediating a construction dispute, as opposed to litigating it, there is a presumption of confidentially. Parties will also sign a confidentiality agreement prior to a mediation. With confidentiality, the particulars of their dispute and the identities of the parties involved is kept from public knowledge, which is advantageous for personal and professional reasons in construction cases.

Confidentiality is outlined in the Illinois Uniform Mediation Act, 710 ILCS 35, preventing disclosures of information regarding a mediation communication to a court or anyone besides the mediator and the parties, unless the mediation communication privilege is waived or precluded by statute. In general, nothing said during a mediation can be deemed an admission or used against any party in future proceedings.  This protection against future disclosure of statements made during a mediation allows the parties to conduct serious, unencumbered and productive negotiations.

Parties to a construction dispute can put the benefits of mediation to work for them.  Mediation is a good choice for complicated construction disputes because it takes less time, costs less and offers flexibility that is not available in court.  Parties may also select a well-qualified mediator with knowledge of construction law and experience with construction mediation.  Further, parties to a construction dispute can take advantage of mediation confidentiality to keep their negotiations private.

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This article was adapted from Judge Curcio’s intended presentation on the value of alternative dispute resolution (ADR) for construction claims at the Illinois State Bar Association’s (ISBA) Construction Law Primer for Young Attorneys and General Practitioners on March 13, 2020. The event was cancelled on March 12, 2020 as a precaution against the spread of the COVID-19 virus.

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Judge Curcio brings an abundance of real-world experience – real estate, business and banking – to her mediation and arbitration practice. She spent 15 years as a Chancery Judge, presiding over mechanics liens, construction contracts and construction defect cases.  Judge Curcio is regarded as an energetic and pragmatic neutral who helps parties construct suitable solutions to their disputes.

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