Normally the large, complex case deals with a construction project that has turned into a disaster and may even jeopardize the livelihood of one or more of the parties. This disaster spawns a major conflict in which virtually everything about the project is disputed. For example, a major defective specification claim may also involve a dispute over hundreds of changes by the owner or architect. The contractor, who faces a large loss on the project, is loath to compromise any of its claims. The owner and/or architect or engineer, both of whom face an uncertain potential liability, are concerned about establishing any precedent by acknowledging liability on even minor matters.

 

As a result of the primary disaster, there is a secondary disaster: a proliferation of issues to a degree that can overwhelm the trier-of-fact. This proliferation often spawns broad requests for document discovery

and depositions and long lists of factual and expert witnesses. 

 

With the parties unable to agree on or understand the nature of the major issues between them, they have little basis for any empathetic exchanges over those issues. Therefore, the chance of settlement or using nonbinding ADR is unlikely. Consequently, the opportunity for an early settlement of the large case may be lost.