Mediation is designed to move cases toward resolution efficiently. But even the most well-timed, well-structured mediation can stall if the right people aren’t at the table—or if the people who are there lack the authority to make meaningful decisions.
In construction disputes especially, decision-making authority is not always straightforward. A project manager may know the facts better than anyone. In-house counsel may control litigation strategy. An insurer may hold the purse strings. And in some cases, a board or executive team must sign off before any deal is finalized. When those roles are misaligned during mediation, progress can be slow or illusory.
From a practical standpoint, this creates friction in what should be a fluid negotiation process. Offers are made “subject to approval.” Settlement ranges shift after off-line conversations. Momentum—often the most valuable currency in mediation—gets lost.
Courts and mediation rules often require that parties attend with settlement authority, but “authority” can mean different things in practice. Limited authority, or authority that exists only within a narrow band, can prevent parties from responding meaningfully as negotiations evolve. That constraint becomes especially problematic when new information surfaces during the session or when a mediator identifies a potential path to resolution that falls outside pre-approved parameters.
Preparation is key. Before mediation, counsel should have candid conversations with clients and stakeholders about realistic settlement ranges, risk exposure, and potential deal structures. If insurance coverage is implicated, coordination with carriers in advance is critical. The goal is to ensure that whoever attends the mediation is equipped not just to participate, but to adapt.
When full authority truly cannot be present, it’s worth planning for real-time access to decision-makers—whether by phone or video—and setting expectations with the mediator and opposing counsel ahead of time. Even then, the process is more effective when those decision-makers are engaged early and understand the dynamics at play.
Mediation works best when it functions as a live, responsive process. That requires more than preparation on the merits—it requires alignment on who has the power to say “yes.” Without that, even the most promising negotiations can stall short of resolution.
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.
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].