MBA Mediation Service
Mediation is a rapidly growing form of alternative dispute resolution. In this form of assisted negotiation, parties agree to engage a neutral third party to help find a suitable voluntary resolution.

The MBA Mediation Service was designed to assist homeowners, builders and subcontractors in resolving disputes, both during and after the construction process.

Mediaiton form

The Role of the Mediator
The mediator’s primary role is to help MBA members and their clients settle their disputes through negotiation. The mediator’s responsibilities include information gathering, evaluation and persuasion. He or she also maintains rules of order; moderates discussions; helps set the agenda and makes participants feel comfortable discussing the issues.

Generally, the MBA provides one mediator, although in some cases, the Association may provide two mediators or a technical consultant to assist the mediator.

The Mediation Procedure
Mediation is initiated once both parties sign an Agreement to Enter Mediation. The service costs $200 per party. A second mediation session involving the same parties is $250 each. Subsequent sessions are $500 for the party requesting mediation and $250 for the other party. If the parties are unable to resolve their dispute, $100 of the Mediation Service fee is credited against the fee for arbitration before the MBA Construction Arbitration Board.

After the Agreement to Enter Mediation is signed, both parties should submit a brief written statement of the items in dispute and their position regarding each item. This Position Statement should identify the parties involved; provide factual background; identify the issues and list the problems.

The Position Statement must be submitted at least 5 days prior to mediation. In addition, parties may submit any relevant contracts, plans, specifications, drawings, photographs, statements, invoices, letters and other written materials. Copies of the Position Statement and all written materials submitted will be submitted to the opposing party prior to mediation. A response or follow-up to a Position Statement is permitted, but must be received by the MBA within 2 days of the mediation.

The MBA Mediation Process is less formal than both arbitration and litigation. There is no formal or informal "discovery" (the legal means by which parties obtain information from other parties). Nor are witnesses permitted without the prior approval of the parties and the mediator. The mediator may consult experts if he or she believes it is in the best interest of the mediation proceeding.

There is no mandatory site inspection; however, a site inspection may be made if the mediator determines it is in the best interest of the proceeding. Photographs may be submitted if it will enhance the ability of the parties to explain their positions.

The Mediation Session
Most mediations begin with a joint meeting during which the mediator explains the process and basic ground rules. Next, each party briefly describes the issues in dispute and the relevant facts regarding their positions. The parties may be represented by counsel, but direct participation is encouraged in order to foster a voluntary settlement. The mediator has the right to ask all parties any questions necessary to gather information about the issues and respective positions and arguments.

Following the joint meeting, the mediator may meet privately with each party to discuss the issues and possible resolutions. The mediator may go back and forth between the parties to discuss various settlement proposals. At some point, the mediator may decide to reconvene the joint meeting to discuss offers of resolution directly with both parties.

The mediation session ends once a Settlement Agreement is signed. The mediator also may end the session if he or she determines that one or both parties are not cooperating or if it appears the mediation process will not result in a settlement. Parties may withdraw from the process at any time by signing a Mediation Session Termination Statement.

The Settlement Agreement
If a settlement is reached, the mediator will immediately draft a handwritten document, which both parties and the mediator must sign. Once the document is signed, it becomes a binding contract.

In some cases, not all issues may be resolved. The Settlement Agreement only records the agreements reached during the mediation session.

Advantages of Mediation
Experience
Only experienced mediators with at least one year of service on the MBA Construction Arbitration Board are appointed to MBA Mediation Service. Mediators are selected based on their experience, training, education and background in the construction industry. All mediators serve voluntarily and receive no compensation.

Confidentiality
All documents created and statements made during the mediation process are confidential. They may not be used as evidence in subsequent proceedings without written agreement of the parties that specifically identifies those items that may later be used as evidence. Tape recording or stenographic recording is not permitted.

Time and Money Savings
Civil court cases normally take one to four years to reach court. In contrast, the MBA Mediation Service can schedule a mediation session within a matter of weeks. The average mediation session lasts 2 to 3 hours, resulting in a valuable time and cost savings.

Preserving Relationships
Disputes may destroy business or personal relationships. That’s why the Mediation Service is particularly effective for those with ongoing business relations or those involved in existing projects.

Flexibility to Parties
Because mediation sessions are informal in nature, the parties are left to their own knowledge and creativity to develop mutually acceptable solutions. Those solutions generally are more satisfactory than a resolution imposed by the courts or the arbitration process.