Construction disputes often begin with a legal disagreement, but they rarely end there. By the time parties arrive at mediation, the conflict has usually affected schedules, strained relationships, disrupted cash flow, and diverted attention from ongoing projects. While the litigation focuses on legal claims, successful mediation often succeeds because it addresses the broader business problem.
Looking beyond the pleadings
Every lawsuit has defined legal issues, but those issues don’t always capture what is truly driving the dispute. An owner may be more concerned about completing a delayed project than recovering every dollar in damages. A contractor may value restoring cash flow more than prevailing on every disputed change order. Understanding those underlying business objectives often creates opportunities that traditional litigation cannot.
Mediation allows parties to have conversations that simply aren’t possible in a courtroom. Rather than asking only who is legally right, the discussion can shift toward what outcome makes the most business sense.
Creative solutions create value
Unlike a judge or arbitrator, a mediator is not limited to awarding money. The parties are free to develop solutions that address their specific circumstances.
Settlement terms might include revised payment schedules, warranty commitments, future project opportunities, agreed punch-list procedures, or phased completion plans. In some cases, resolving operational issues alongside the financial dispute creates value that neither side could obtain through a trial verdict alone.
The flexibility of mediation is often one of its greatest advantages.
Preserving business relationships
The construction industry is surprisingly small. Owners, contractors, subcontractors, architects, and suppliers frequently cross paths on future projects. Even when a dispute has become contentious, preserving a professional relationship may have significant long-term value.
Mediation provides an opportunity to resolve disagreements without the winner-and-loser dynamic that often accompanies litigation. While not every business relationship can—or should—be saved, approaching negotiations with future opportunities in mind can lead to better outcomes for everyone involved.
The takeaway
The best mediation outcomes do more than settle legal claims. They solve business problems. By identifying the interests that exist beyond the lawsuit itself, parties often discover solutions that reduce risk, preserve relationships, and allow everyone to focus on what they do best: building successful projects.
Michael R. Bosse is a construction and litigation attorney with nearly three decades of experience representing developers, contractors, subcontractors, and suppliers across New England. Known for his diplomatic, client-focused approach, Mike advises on contract negotiation and administration, construction claims, mechanic’s liens and Prompt Payment Act matters, eminent domain, condemnation cases, and more. He can be reached at [email protected].
Bernstein Shur’s Construction Group helps developers, contractors, and construction professionals manage risk and keep projects on track at every stage of the project lifecycle. The group provides sophisticated legal solutions spanning contract negotiation, project administration, dispute avoidance, and litigation, drawing on deep experience in the construction industry.