Gaining objective insight into the likely settlement amount in a construction case


Construction insight

It would be unrealistically sanguine to say that any one piece of information can be used to precisely predict the settlement amount for a given construction case. Personalities, emotions, the prior experience of the parties, project documentation, applicable case law, litigation costs, attorney fee recovery provisions and even avarice can all play a role in the ultimate settlement figure. 

However, an experienced construction mediator will know what types of information will disclose how much the parties have really been financially hurt on a particular project, and such information will assist the mediator in gaining insight into the range of realistic settlement amounts for that matter, as adjusted by other factors specific to that matter.

Most knowledgeable contractors, design professionals and owners keep reasonably meticulous records of the amounts they spent and what those amounts were spent on. Those amounts aren’t always incurred due to the fault of the opposing party, but, rest assured, the party who has experienced a loss on a project will take the position that the other party is responsible. Because counsel for the parties, particularly counsel that may not be experienced in construction litigation, may not ask for such information, the mediator should do so in caucus. As a mediator, our job is not to educate counsel for the parties in ways to be a more effective advocate, but it is our job to be as informed as we can be in our effort to resolve a matter so that the parties can move on with their lives.

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