Several years ago I participated in a mediation related to a commercial building which had been plagued by persistent roof leaks over a period of more than 5 years since its construction. The owner had grown exasperated by having to make regular and repeated calls to the contractor to repair leaks, and the contractor had apparently grown tired of sending crews to repair the leaks. The contractor recommended the owner budget funds for a new roof, and the owner was not receptive to the idea that it should have to pay for a new roof on such a new building. Lawyers were engaged by each side, and, after more than a year of legal discussions, the matter was brought to mediation. Although the owner wanted a “free” new roof, and the contractor wanted to be “free” of the roof, the mediation instead produced an agreement wherein the contractor committed to a conditional multi-year warranty, during which time the contractor would return to repair any leaks, and the owner would have to make a few related modifications and provide timely notices of leaks that might develop. So, the mediation agreement required the parties to honor continuing commitments to each other. Unfortunately, this meant the owner would continue to be faced with roof leaks related to the original construction and would have to continue to make calls to the contractor, and the contractor would have to continue to send crews to repair roof leaks. Although the mediation agreement formalized the contractor’s “ownership” of the roof problems, it did not solve the problems or make them go away. Instead, every subsequent roof leak was a source of rekindled unhappiness – the owner’s unhappiness with the contractor and the contractor’s unhappiness with having to revisit the project.
To be fair, it should be stated that the mediating parties were optimistic that the agreed repairs would be “final” and that there would not be a need for repeated visits to make successive repairs to recurring leaks; so, the mediation agreement was concluded in good faith with the expectation that it would lead to “happiness”. But, the outcome was less satisfying. Instead of turning the page to a “new day”, the parties stayed on the same old page, and the same old grumbling soon became the order of the day.
Looking back on that now, and having been through a few other mediations, I have to say it would be better if possible for all parties to seek an outcome that “turns the page” and puts the problems that led to the mediation behind them. In other words, the mediation agreement should get the parties out of the problematic roles and change the environment or situation such that wounded relationships might heal with time and separation from the problems. That agreement would most likely include a monetary settlement or contractor’s commitment to pay for work to be done by others. It could be an agreement that establishes sequential steps or phases for resolving the source problems (the leaks) and freeing the parties to part amicably and move on. Getting out of the “unhappy” roles – turning the page – is an essential part of an effective mediation. It’s about feelings as much as (or more than) physical building problems.