Construction disputes are often high-stakes and high-stress. When a case arises, clients may instinctively picture a courtroom battle or a binding arbitration. Mediation, however, is fundamentally different. It is not about winning—it’s about resolution. Understanding the distinctions in tone, control, and process helps ensure that clients don’t bring a litigation mindset into the mediation room.
Tone: From adversarial to collaborative.
Litigation and arbitration are inherently adversarial. Each side presents arguments to persuade a judge, jury, or arbitrator, who ultimately issues a binding decision. Mediation, by contrast, is designed to be collaborative. While emotions may still run high, the goal is dialogue rather than combat. The mediator’s role is not to decide who is right or wrong but to facilitate productive conversations that lead to common ground. Clients who expect a “day in court” may miss the opportunity to reframe the dispute and pursue creative solutions.
Control: Retained by the parties, not imposed by a third party.
In litigation, a judge or jury controls the outcome. In arbitration, the arbitrator decides. In both, the parties surrender decision-making power. Mediation is unique in that the parties retain control over whether and how the dispute is resolved. No settlement can be reached without their agreement. This can be empowering—but only if clients understand that they must be active participants, weighing risks, compromises, and business priorities in real time.
Process: Flexible and tailored, not rigid and formal.
Court and arbitration proceedings follow formal rules of evidence and procedure. Mediation is intentionally flexible. The format can vary depending on the case, the mediator, and the parties’ preferences. Sessions may involve joint meetings, private caucuses, or even staggered discussions across multiple days. This flexibility allows mediation to address not only legal issues but also commercial relationships, scheduling concerns, or reputational risks—issues that formal proceedings often overlook.
The takeaway.
Mediation is not a watered-down version of litigation or arbitration—it is a fundamentally different process with its own strengths. By shifting perspective from winning to resolving, clients can approach mediation with the mindset required to achieve lasting, practical outcomes. Understanding the differences in tone, control, and process helps clients get the most out of the opportunity mediation offers.