Most construction disputes settle. Settlement of sometimes contentious, always costly disputes is a great value to clients. An even greater value is obtained if the process used facilitates a rational, well-informed settlement as early as possible. Quickly resolving disputes is valuable because it reduces the time-related expense involved with using the adversarial process, preserves opportunities for maintaining valuable business relationships, and allows for innovative business ideas to facilitate settlement. By contrast, courts and arbitrations are designed to deliver a monetary award binding on each party. Because that award can be severe, the process is layered with costly procedural rules to ensure due process. While the litigation or arbitration process might eventually lead to a settlement, neither usually produces that result quickly, and neither is structured to deliver savings in process costs or to preserve relationships. If early dispute resolution is valuable to pursue, there should be an alternative way available to achieve that goal other than the typical routes of litigation and arbitration. The purpose of this article is to assemble and explain the various tools and best practices used by skilled mediators to promote and create that alternate route which the authors refer to as “Guided Choice.”
The best way to achieve the earliest possible settlement is first to understand the impediments to settlement and then to create a customized settlement process addressing them. Those impediments often involve more than lawyers disagreeing about probabilities of binding outcomes based on the law, facts, and expert opinions.