When you get right down to it, the construction process is fascinating. Contractors take a set of drawings and with the right labor, equipment and materials they can build just about anything. My six year old grandson can’t take his eyes off diggers, loaders and backhoes. I can’t blame him. Watching heavy equipment in action is completely mesmerizing.
I have one of the only third floor offices in Livermore. Outside my window is an unobstructed view of the Livermore hills in all their green and gold splendor. In the foreground was a small commercial oil change building – until recently. One day I left my office and the building was there just like it had always been for years and years. The next day I looked out my window and saw something completely different – a pile of rubble and a large excavator.
What happened? The building was being torn down in the name of progress, and a new structure is planned for its space. The overnight change was truly dramatic. I know it takes months to put up a building, starting with the planning, drawings, permits and then doing the foundation work, underground utilities, framing, stucco, roof, windows, interior walls and finishes. Everything has to be carefully sequenced and orchestrated. You can’t put the roof on until the walls are built. You can’t install windows without a wall or foundation.
But demolition is completely different. The excavator shows up, hooks its bucket on to the roof of the building and presto – down it comes. With a good sized excavator you can easily take down a small or medium-sized commercial building in a day (or less).
Why the big difference between construction and demolition? Because effective construction requires everything to be done just right and in the right sequence. With demolition everything happens all at once. Demolition requires relatively little planning, very little sequencing and no delicate operations.
As with construction, a successful mediation requires advance planning and legwork. The dispute has to be ripe for resolution – if key questions are unanswered the case may not be ready for resolution. Advance preparation includes identifying necessary decision makers; selecting an appropriate neutral; scheduling; and exchange of key documents and briefs. A skillful neutral will carefully review the briefs, identify potential gaps in the documentation and discuss them (as appropriate) with counsel. The mediation timing must be appropriate to the case; the correct parties must be present; any insurance issues must be identified. These are key tools that the mediator works with.
Few structures get built in a day, but the large majority of mediations are done in a day. Even though a mediation time frame is far more compressed than a construction project, there’s still a sequencing that needs to be followed. First the legal counsel must have confidence in the mediator. Then the mediator must feel comfortable with the dispute. Ultimately the parties need to feel like they can trust the mediator; they must know that he or she is impartial. They need to know that he or she is prepared and fully understands their position and arguments.
All of this takes both time and care. If a mediator is going to truly understand the strengths and weaknesses of a party’s position, then the mediator must be willing to spend the time and effort to become acquainted with the case, the counsel and the parties. Sometimes a mediator can be tempted to skip most or all of the prep work and start asking for demands right at the outset of a mediation. If the case is already in a position to settle without much mediator input, then such an approach may result in a successfully mediated resolution. But if emotions are high, or liability or damages issues aren’t clear, then a mediator is going to need to follow the sequence of becoming familiar with the case and each of the parties. Any effort to shortcut this process can sometimes result in more of a “demolition” than a “construction” process. And the best mediations proceed in a logical, ordered sequence towards resolution. Skip one of the key steps and you may find yourself back at square one.
The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.
Robert B. Jacobs is an attorney, mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJlaw.com.