Article Date: 12/20/2013

How Popular Will the ‘Guided Choice’ Approach to Mediating Construction Disputes Become?

By Steve Rizer


“Guided choice” is being trumpeted as a new, cost-saving approach for resolving disputes in the design and construction industry, but how popular will it become? Well, use of the method could flourish in a major way if some steps recently taken to promote it prove effective.


One such step involves ConsensusDocs, a coalition of 40 design and construction industry associations, which earlier this month announced that it is including information about how to implement guided choice in the official ConsensusDocs Guidebook. In addition, the group recently sought to educate users about the process at the annual Construction SuperConference ConsensusDocs PreConference Workshop in San Francisco. Furthermore, the American Arbitration Association (AAA) will honor requests from the parties to use the guided choice process in AAA-administered mediation through arbitration.


As explained in a paper entitled “Guided Choice: Early Mediated Settlements and/or Customized Arbitrations,” written by guided choice pioneer Paul Lurie, the approach “requires lawyers and mediators to reconceive of the role of mediators to not only settle but to do so at the earliest possible time. Guided choice emphasizes the use of the neutral as a ‘mediator-guide’ to help the parties gather facts necessary to gauge the probability of litigation success at the earliest possible time and without relying on formal discovery.”


But will the use of guided choice catch on?


When asked to make a prediction about the degree to which guided choice will be adopted or embraced within the industry, Carrie Ciliberto, Associated General Contractors of America’s senior director and counsel for contracts and construction law, told ConstructionPro Week, “I think -- and this is my personal opinion -- that it should be” widely embraced. “If you’re a good attorney and effectively looking out for your client’s best interest, or even if you’re not going to involve attorneys but you’re a party to a dispute, it behooves you to address issues at an earlier stage to find resolution. It doesn’t do anyone any good to continue to argue for months without progress. That’s just racking up time and expenses on both sides.” She noted that “like all tools, guided choice will only be most effective when used properly.”



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