Mediation is often a good idea, but only if it is “ripe.” An unripe mediation can leave a bad taste in your mouth. Have you ever tasted an unripe persimmon? Not only will it drain all the moisture from your mouth, but you may never want to try one again – the tannins of the unripe fruit are very bitter. However, having tasted one ripened to perfection, you will certainly want more. The same is true of most fruit and of your experience with mediation.
Assuming your construction contract includes a mediation provision and you just received a letter from a subcontractor requesting mediation, how should you respond? Since the contract obligates you to mediate, you should agree, right? Yes, but the contract and the request may not account for a pre-mediation exchange of information to ripen the dispute before a mediation session. Mediating without a reasonable understanding of each party’s position and the relative risks and rewards of settlement is like tasting an unripe persimmon – it will drain the good perspective that you had for mediation and you may never want to mediate again.
But how will a pre-mediation exchange of information succeed? After all, the dispute probably arose because the parties couldn’t or wouldn’t work together through normal project procedures? How then can the parties expect to ripen the dispute for mediation?
With time, the gradual exchange of information, a willingness to consider both giving and taking, and maybe the help of a third-party, the parties will understand that resolving the dispute now will likely save time and money later.
Prime Contractor Had No Duty to Help Surety Investigate Sub’s Default
We all know what happens when we “ASS-U-ME” something. So, we should all carefully avoid assuming things unnecessarily.
It’s Good to Be the King
Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.” It’s also true when asserting claims against the State or an arm or agent of the State.
Smoke Without Fire: Damage from Concrete Dust Covered by Insurance
You’ve heard, “where there’s smoke, there’s fire.” In this instance, the smoke was concrete dust that damaged a warehouse full of aircraft […]
Changes Made After Substantial Completion Did Not Extend Overall Project Time
Contractors take heed – a time extension may be issued after substantial completion for specific work and the Government can still assess […]
One-Sided Construction Arbitration Clause Valid in Virginia
When it’s time to butt heads, know how the local turf (court) will interpret the clause.
Manage the Risk of Construction Changes
Almost any problem on a construction project can be traced to one of two things: changes or delays (even delays are really just changes). As in life, embrace and manage the change don’t run from it.
Want Your Profit? Prove a Constructive Change, Not a Suspension of Work.
What’s the Difference Between a Suspension of Work and a Constructive Change? For federal contractors, there are two main differences: . . .
No Special Defenses to Arbitration Agreements
Arbitration agreements, whether they are separate or part of a larger agreement, are contracts – an enforceable set of promises between parties. […]
How to Find (and Confirm) the Plain Meaning in a Contract
Contract formation confirms the parties understand and agree to all the essential terms. When that understanding and agreement fades, how do you […]










