Role of a Lawyer in Construction Mediation

The Kerala Mediation and Conciliation Centre (KMCC), launched an innovate scheme, Nirnaya.  The scheme offers private mediation as a means to resolve commercial and construction disputes.  It was launched on 05 August 2023, in the Kerala High Court, Auditorium by Mr Justice Ashish J Desai, the Chief Justice of the High Court of Kerala.  The Scheme is the brain child of Mr Justice Muhamed Mustaque, the head of KMCC.  A colloquium on Mediation was organized in the side lines of launch event.

The Kerala Mediation and Conciliation Centre (KMCC), launched an innovate scheme, Nirnaya.  The scheme offers private mediation as a means to resolve commercial and construction disputes.  It was launched on 05 August 2023, in the Kerala High Court, Auditorium by Mr Justice Ashish J Desai, the Chief Justice of the High Court of Kerala.  The Scheme is the brain child of Mr Justice Muhamed Mustaque, the head of KMCC.  A colloquium on Mediation was organized in the side lines of launch event.

The Colloquium included a panel discussion on the topic “Role of lawyers in Mediation, beyond Court Rooms”.  In the panel discussion, the author herein had a great opportunity to make a presentation ‘Role of Lawyers in Construction Mediation’.  Given the paucity of time, it was deemed appropriate to elaborate on the concepts presented, through this article.

Lawyer as a gladiator, counsellor and an advisor

A lawyer is engaged to advocate, be it litigation, arbitration or mediation. The term “Advocate” means to publicly support or suggest an idea, development or way of doing something[i].  In the litigation arena or adversarial settings, he turns out to be a gladiator, a man trained in ancient Rome to fight against other men or animals.

In Mediation, a lawyer should be seen as playing the two distinct roles, of a gladiator and counsellor. As a gladiator, he fights relentlessly for his or her client’s interests and ultimate success in court. However, as a counsellor, a lawyer is obliged to review dispassionately the strengths and weaknesses of the client’s case and to recommend various approaches for resolving the dispute, including settlement, where appropriate.

However, suggesting the possibility of a compromise before the battle has been fought has traditionally been seen as a sign of weakness.  This is despite the fact that a lawyer owes a professional duty to a client to provide objective advice that is in the client’s best interests. 

A Lawyer has yet another role of an advisor, in a mediation.  It is to advise the client about the availability of the process, to provide pre-mediation advice necessary for participation in the process, to participate in the process in good faith to the extent that lawyer participation is required, and to protect the party’s legal interests in connection with any agreement reached.

The Lawyer Makes or Break, the Mediation

In a Mediation, the focus is always on the skills of the Mediator, and is often projected as a hero, and at time the lawyer is the anti-hero.  But, in real terms, it is otherwise, for the lawyer make or break the mediation.

Good mediation lawyers or representatives can shift seamlessly to the roll of an advisor from an advocate. In their role as advocate, they will succinctly summarize legal arguments, but not in an adversarial or combative way.  Offer advice, guidance and information on negotiation and mediation.  Good mediation lawyers or representatives cope well with being challenged privately by the mediator. They are experienced and wise, and they are committed to find the best possible solutions for their client[ii].

Tips for preparing a Client for Mediation

Mr. John Austin, in an article published in the website of American Bar Association, has enumerated five tips for preparing a client for mediation[iii].  The tips are:

1. The Mediator Does Not Pick Sides
2. Be Open Minded and Listen to Opposing Counsel’s Presentation
3. Mediations Are Typically Long, Boring…and Intense
4. Mediators Are Not Arbitrators or Judges
5. Mediation Often Is the Best Time to Settle

Calculating the Client’s BATNA

Calculating Parties ‘BATNA’ meaning BEST ALTERNATIVE TO NEGOTIATED AGREEMENT, may be helpful.  The party can be made aware that a negotiated agreement is very important

Features of BATNA

BATNA, aids the party and their lawyer in determining the importance of negotiation.  It analyses the best alternatives and helps to reduce the unavoidable cost and management time.  Moreover, it would enable the party to determine the strategies for negotiation.

Steps to determine BATNA

• Identifying the following steps and actions is necessary:
• List out all the strategies to make the negotiation possible.
• Determine the maximum cost if the negotiation is favorable.
• List out all the options available as Alternatives.
• Analyze the Best possible Alternative.
• Analyze the cost of the Best Possible Alternative and compare it with the maximum cost of negotiation.
• If the cost of the best possible alternative is lower than the maximum cost of negotiation, then the Best Alternative is said to be BATNA.

Ensure party with authority to attend meetings

Most institutional mediation rules prescribe, persons with authority to settle the mediation, to attend the meeting.  It will ensure a speedy resolution of dispute. A ‘Lead Negotiator’ or a ‘Business Principal’ with full authority to settle the dispute and to sign the settlement agreement[iv].

Understanding Construction Law

Construction Law is a branch of law that deals with matters relating to building construction, engineering, and related fields. It is in essence an amalgam of contract law, commercial law, planning law, employment law and tort[v].

A study of the standard form contracts prepared by FIDDIC[vi] a reading of the Delay and Disruption Protocol formulated by the Society of Construction Law[vii], is a starting point for any lawyer, who would wish to venture into legal practice with special focus on construction mediation.

FIDDIC standard form Construction Contracts

FIDIC standardizes contracts that are commonly used in the global construction and engineering industry, primarily for international construction projects, which have a higher value and are authorised by many multilateral development banks[viii]. 

View the video that explains FIDDIC Contracts

The Delay and Disruption Protocol

This Protocol has been prepared by the Society of Construction Law for determining extensions of time and compensation for delay and disruption. It exists to provide guidance to all parties to the construction process when dealing with delay and disruption matters. It recognises that transparency of information and methodology is central to both dispute prevention and dispute resolution[ix].

Conclusion

In order to play an effective role, the lawyers need to be learnt about construction law and the nuances of the industry.  It should be understood that the parties to a commercial or construction dispute are business men.  They have entered into the contract for shared wealth.  However, when it come to a dispute, they have to restrict themselves to rights and obligations, which is not the interest of either of the parties.  Therefore, the most important role of a lawyer is to bring back the parties to the world of business and talk to them in that language.

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[i] advocate defined in https://dictionary.cambridge.org/dictionary/english/advocate

[ii] Construction Industry Council MODEL MEDIATION AGREEMENT AND PROCEDURE, FIRST EDITION

[iii] https://www.americanbar.org/groups/litigation/committees/trial-practice/practice/2020/five-tips-to-prepare-your-client-for-mediationse.

[iv] Construction Industry Council MODEL MEDIATION AGREEMENT AND PROCEDURE, FIRST EDITION

[v]https://en.wikipedia.org/wiki/Construction_law#:~:text=Construction%20law%20is%20a%20branch,law%2C%20employment%20law%20and%20tort.

[vi] https://fidic.org/

[vii] https://www.scl.org.uk/

[viii] https://blog.ipleaders.in/need-know-fidic contract/#:~:text=FIDIC%20standardizes%20contracts%20that%20are,by%20many%20multilateral%20development%20banks.

[ix] https://www.scl.org.uk/resources/delay-disruption-protocol