What Is Mediation (Really)?
Mediation is like a legal peace summit with a referee who doesn’t take sides. You sit down (virtually or in person) with the other party and a neutral third-party mediator, who helps both sides try to work things out before spending even more money on legal fees.
This isn’t a trial. No one is handing down a ruling. You and the other side control the outcome. The mediator’s job. To get both parties to agree on something they can live with—even if it’s not something they love.
Because let’s be honest: most settlements don’t feel like a win. But if you can cut off the stress, risk, and cost of a full-blown trial, it’s often worth it.
The Role of the Mediator: Think Switzerland
The mediator is neutral, like Switzerland during wartime. They’re not your lawyer. They’re not the judge. They don’t testify, and they can’t be dragged into court later. What happens in mediation stays in mediation.
You can usually choose a mediator with experience in your type of dispute, which is especially helpful in construction cases where contracts, change orders, liens, and scope-of-work arguments can get complex.
- Ask tough questions
- Test both sides’ positions
- Keep the discussion moving
- Propose creative solutions
- Help everyone face legal and financial realities
They don’t care who “wins”—they care whether the case settles.
What Happens in Mediation?
Pre-Mediation Calls: The mediator checks in with each side to understand the issues.
Opening Session (optional): Sometimes, everyone gathers in the same room (or Zoom screen) to make opening statements.
Private Caucuses: Each side goes to their own room while the mediator shuttles back and forth.
Negotiation: Offers are exchanged. Emotions may flare. Coffee is consumed. Progress is made (hopefully).
Settlement (if reached): If both sides agree, it’s put in writing and signed. If not, mediation ends with no resolution.
- Confidential and private
- Parties stay in control of the outcome
- Flexible solutions are possible
- Great way to avoid racking up more attorney fees
- The other party isn’t serious about settling
- Offers are too far apart
- One side is just there to delay or gather intel
- Even if there’s no deal, it can still help clarify the issues and set the stage for later resolution.
What is Arbitration and how is it different?
Arbitration is like a private trial. Instead of going to court, both sides present their case to an arbitrator (or a panel), who issues a final, binding decision.
- Much faster than court, especially in busy counties
- Private, unlike public court trials
- Choose your decision-maker: often someone with actual construction law experience
- Less formal process, but still structured
- Fewer delays, more efficient resolution
- Many judges, especially at the county level, come from DA, criminal, or family law backgrounds and may know very little about the technical and legal issues unique to construction disputes. In arbitration, you can select an arbitrator with real-world construction experience—which can make a big difference in how your case is understood and decided.
- No jury—you waive your right to a jury trial
- Very limited appeal rights, even if the arbitrator makes a clear mistake
- Discovery may be restricted
- Can be expensive: Arbitrators charge hourly, and if you go through organizations like the American Arbitration Association (AAA), you’ll also pay a significant administrative fee on top of that
- Some arbitrators try to “split the baby”—nobody walks away feeling like they won
- Arbitration can be done privately (directly with the arbitrator) or through arbitration companies like AAA or JAMS. Private arbitration is often more flexible and less expensive, while AAA can be more structured but more costly due to administrative fees.
Arbitration vs. Court
And remember, litigation takes a toll beyond the legal fees. You’re gathering documents, responding to discovery, attending depositions, working with your attorney for months, maybe even years. You’re investing time, energy, and focus that could be spent on your business or your life.
Talk to your attorney before agreeing to mediation or arbitration—or before signing a contract that requires it. Your rights, your strategy, and your outcome all depend on it.
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This guide is provided for informational purposes only and is not legal advice. For advice about your specific situation, consult an experienced attorney in the same area.
