One of the most valuable aspects of mediation has nothing to do with settlement numbers. Instead, it is the opportunity for parties to step back from the day-to-day litigation process and take a fresh look at risk.
By the time a construction dispute reaches mediation, parties have often spent months—or even years—building their case. Attorneys have developed legal arguments, experts may have been retained, and project teams have spent significant time defending their positions. As a result, it is natural for parties to become invested in their view of the dispute and convince themselves that their position is far superior to tother other side. Mediation creates an opportunity to test those assumptions and beliefs before additional time and money are spent when the result is still uncertain.
Litigation risk is not static
Many parties enter mediation focused on the strengths of their case. While understanding those strengths is important, successful mediation often requires an equally honest assessment of weaknesses and uncertainties.
Construction disputes frequently involve conflicting project records, disputed witness testimony, arguments over changed site conditions and the responsibility for them, and competing expert opinions. A claim that appears strong at the outset may look different after additional discovery or expert review. Likewise, a defense that seems compelling may carry vulnerabilities that become apparent only after closer examination. Mediation provides a structured environment for evaluating those risks before they are placed in the hands of a judge, jury, or arbitrator.
The cost of being right
Even when a party believes it has the stronger position, litigation carries significant costs. Depositions, expert analysis, motion practice, trial preparation, and appeals all require time and resources. Being right and winning, but ultimately getting a low net recovery when attorney fees are deducted from the result, may not ultimately be worth the overall effort.
And for construction businesses, those costs extend beyond legal fees. Key employees may spend substantial time gathering documents, preparing testimony, and participating in litigation rather than focusing on ongoing projects and operations. Additional forward-looking revenue gets lost. As disputes continue, business relationships also may deteriorate and opportunities for practical resolution can disappear. A realistic risk assessment considers not only the likelihood of success, but also the cost of achieving that success.
A neutral perspective can be valuable
One of the mediator’s most important functions is providing perspective. An experienced mediator has likely seen similar disputes before and understands how decision-makers may view certain facts, arguments, and evidence.
While mediators do not decide cases, they can help parties identify assumptions that may be affecting negotiations. Sometimes the most productive moment in a mediation occurs when a party begins to recognize risks that had previously been discounted or overlooked. That shift in perspective often creates the flexibility necessary to move negotiations forward.
The takeaway
Mediation is not simply an opportunity to negotiate a settlement. It is also an opportunity to evaluate and test the matrix of risk through a different lens. Parties who use mediation to honestly assess both the strengths and weaknesses of their position are often better equipped to make informed decisions about settlement, litigation, and the path forward. In many cases, that reality check is one of the most valuable outcomes the mediation process can provide.
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.