Mediate early and often

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In complex infrastructure disputes, litigation costs can outstrip the claim itself. Mediation, pursued early and frequently, re-engages decision-makers and fosters cooperation – positioning it not as a detour but as the main road to resolution

THERE IS an old saying that the first thing one should do when one finds oneself in a hole is to stop digging. Wise advice, rarely offered, even more rarely taken. And why is this so problematic in the heavy industrial and infrastructure industries? The answer is one of scale. It is as true of the heavy industrial infrastructure construction industries as it is in many others that the per side transaction cost of rights-claiming, whether by arbitration or litigation, often exceeds the amount genuinely in issue between the parties. The difference in the heavy industrial and infrastructure sectors is that when the amounts in issue stray in the 100s of millions, or billion-dollar range, the heuristic breaks down. The transaction costs involved in mediating “early and often,” on the other hand, are relatively insignificant. The prevalent conceptual framework for rights-claiming in the heavy industrial and infrastructure sectors is that mediation exists as a detour only, an off-ramp from the main road of litigation or arbitration. It should be just the opposite: litigation or arbitration should be conceived of as rough roads detours from the main highway of ongoing private mediation. Once that conceptual step is taken, investment in mediation “early and often” makes a great deal of sense.

Duncan W. Glaholt provides experienced independent services as arbitrator, mediator, dispute board chair, and referee to the domestic and international construction industries. Glaholt ADR Inc. has experience in resolving disputes by mediation and arbitration in transportation, energy, industrial, mining, and other similar sectors of the construction industry, and under both institutional and ad hoc rules. Mr. Glaholt chairs a number of dispute boards and often acts as a referee and court-appointed claims monitor. Glaholt ADR Inc. has developed strategies for mid-project resets and the completion of troubled projects.

“There is an old saying that the first thing one should do when one finds oneself in a hole is to stop digging. Wise advice, rarely offered, even more rarely taken”

Duncan Glaholt, Glaholt ADR

It does not matter how ongoing mediation takes place. The mediator (or mediators) can be hired as a project mediator or they can be hired serially as ad hoc mediators in serial appointments where subject matter expertise is important. What matters, all that matters in fact, is that whoever the mediator is, they be adept in creating and curating repeat, high-value interactions among decision-makers. Repeat, high-value interactions occur naturally and organically on most construction projects of any length even without a mediator. These are the daily interactions that create, and enforce, the relational “soft” ordering of contracts. They are in contrast to the “hard” ordering imposed by the law and transactionally drafted construction contracts. Wherever this organic series of repeat, high-value interactions breaks down, conflict occurs. Construction dispute mediation can help the parties rediscover and re-engage with the process that had been working so well for them before their dispute.

Through active and ongoing mediation, the parties can relearn what they once knew intuitively, that when one is blind to a counterpart’s choices, the most successful strategy is “tit-for-tat beginning with cooperation.” If a mechanism for repeat, high-value interaction is in place, and accessed by the parties with some regularity, defection to adversarialism is revealed for what it is: an ultimately unsuccessful commercial strategy. “Mediation early and often” limits defection to positional bargaining in three ways:

1. Re-engagement of decision-makers: The delegation of commercial disputes to lawyers, accountants, and claims professionals leads to passivity. Passivity is an enemy of cooperation. Passivity creates “out-of-sight, out-of-mind” risk blindness. Once a construction industry dispute is delegated to third parties (usually lawyers, experts, and arbitrators), ownership of the dispute passes from owner to an agent. This buys management comfortable distance from the problem (and its solution). If the dispute is to settle, however, this process must be reversed. Re-engagement of principals is necessary. Responsibility for the resolution of the dispute must be returned to decision-makers, aided by the construction dispute mediator. Decision-makers must retake ownership of the dispute and become directly and personally responsible for its settlement. Mediation “early and often” makes this possible. 2. Repeat, high-value interaction: Creating authentic repeat, high-value interactions is the responsibility of the construction dispute mediator. The number, quality, and value of interactions are up to the construction dispute mediator. As most of the mediator’s work is done in caucus, and not with the parties face to face, the mediator effectively becomes the game board on which the game of settlement is played. Visibility of positions is available only to the mediator. The parties see only the other side’s move, whether it be cooperation or defection, not its antecedents.

3. Disengagement: Once the disputants have used mediation “early and often” to relearn the successful strategy of initial cooperation followed by reciprocation, the parties will have experienced the success of a new strategy. The more investment of will that has been engaged in participating in these authentic, repeat, high-value interactions during the mediation event, the less likely the parties will defect to positional bargaining, and adversarialism.

“Litigation or arbitration should be conceived of as rough roads detours from the main highway of ongoing private mediation”

Major public infrastructure companies are experimenting with grants of mediation jurisdiction to dispute boards with just this sort of a process in mind.

Published Jun 9, 2025

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Early and ongoing: the payoff of proactive dispute boards

50% of individuals and 32% of entities reported that their dispute boards adopted avoidance measures very often or always

45% of individuals said these measures led to the dispute being completely avoided

33% of entities noted disputes were at least relatively reduced as a result

67% of individuals and 72% of entities said that after a dispute board process, litigation/arbitration was commenced only up to 10% of the time

51% of individuals and 42% of entities confirmed the dispute board process was always a mandatory step before initiating legal proceedings

83% of individuals and 71% of entities prefer standing dispute boards over ad hoc ones

64% of individuals and 67% of entities prefer dispute boards with three members, emphasizing depth and continuity

36% of individuals and 46% of entities prefer binding findings, with others favouring flexible authority

From backup to backbone: industry perceptions are shifting

Duncan Glaholt, Glaholt ADR

Source: 2024 Dispute Boards International Survey: A Study on the Worldwide Use of Dispute Boards Over the Past Six Years

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