Construction

Few areas have a higher ratio of legal costs to amounts in dispute than construction cases. This unfortunate fact for litigants creates a significant demand for mediated outcomes. It is almost axiomatic that the parties are collectively better off with a settlement, and extremely common that they are individually better off as well. This is the point made by posing the “Best Alternative to Mediated Outcome” question that should frame every settlement decision in mediation.

While the raw economics would dictate the benefits of early settlement, powerful forces tend to delay that accomplishment. Chief among those are inadequate information exchange; and motivated reasoning. Mediation provides the best vehicle for overcoming those impediments.

      • Information exchange through formal discovery is slow and costly. The parties’ counsel often seek tactical advantage by obstructing and delaying the process. Parties are often motivated not to highlight the evidence and facts most critical to resolving the dispute. A mediator, in contrast, can customize the information exchange to achieve both speed and relative precision. While parties can reserve the right to seek more exhaustive information in due course, they can likely achieve nearly everything necessary to understand the merits through a mediation exchange.
      • Motivated reasoning is the natural bias one has to see evidence that supports one’s own position, and ignore or discount facts that undermine it. It is a universal phenomenon, and litigators and their clients are as subject to it as anyone else. A mediator offers the unique advantage of seeing both sides’ strengths and weaknesses without a prior bias.

Construction disputes are bedeviled by their complexity. Just as all major projects are unique in many ways, so are the facts underlying any dispute about such a project. This puts a premium on the ability to see over the horizon, so to speak - to anticipate the patterns and issues that are likely to drive an outcome to the dispute. Similarly, triers of fact, be they judges, arbitrators or jurors, will be drawn to the clearest and simplest explanations of a dispute. This benefits the party whose lawyer can tell a clear story that is supported by the known facts. It benefits the mediation when the neutral is able to anticipate the explanations of the dispute that will be attractive to an ultimate trier of the case. To achieve these benefits of mediation the neutral should bring a deep familiarity with the construction field, and with the common patterns of construction litigation.

Fisher has handled claims over delay and disruption, design defect, construction defects, structural failures, subsurface conditions, environmental contamination, and construction insurance, among many others. Over the course of his career handled such matters as:

    • As principal outside counsel for the Connecticut Department of Transportation in the 1990’s he handled:
        • The Mianus River Bridge replacement project;
        • The I-84 – Route 8 Interchange;
        • The Bradley Airport runway paving defects case;
    • In other matters for the State of Connecticut he was lead counsel on:
        • The UConn Law Library defects;
        • The York Women’s Prison defects;
    • Representation of various general contractors on movable bridge cases adverse to a city and state;
    • Representation of general contractor on international contract for exploratory oil drilling platform;
    • Representation of the design professional on a town-wide sewer project;
    • Representation of Amtrak regarding a major bridge collision by a commercial vessel.