By: Gary L. Brown, Esq.
The seeds of success (or failure) of construction mediation are planted long before the mediation. Mediation of construction disputes presents many unique challenges. Construction cases, particularly ones in involving construction defects, are usually document intensive and involve multiple parties. Sufficient development of the facts and having the right parties (including insurance adjusters and surety representatives) at mediation are crucial for a successful outcome. Learning your case, or finding out an essential party is missing, at the time of mediation will likely result in failure. With this in mind, there are several keys to having a successful mediation. While preparation is paramount, nothing, not even preparation, guarantees a successful outcome. But failing to prepare almost always guarantees a disappointing outcome, and following the below suggestions may make the difference between winning and losing at mediation.
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- Altering the Attorney’s Perspective About Preparation for the Mediation
- Finding Coverage Under Applicable Insurance Policies
- Knowing Applicable Insurance Trigger Dates Is Essential to Knowing Which Parties Have Coverage
- Evaluating Occurrences, Carriers and Parties
- Understanding the Project Insurance Program:
OCIP, CCIP, Traditional CGL, Suretyship, Professional Liability, SIR limits, deductibles, primary vs. excess?
- Understanding Ongoing vs. Completed Operations and the Duty to Defend an Additional Insured
- Ensuring Claimants Fully Understand Allocation of Damages Between the Parties
- Understanding Each Party’s Scope and Percentage of Work on the Project
- Evaluating Pre-Mediation Demands Within Policy Limits and the Potential for Bad Faith
- Educating Clients About the Mediation Process and the Mediator’s Role
- Avoiding Surprises on Mediation Day
- Managing Client Expectations in Advance of Mediation Day
- Preparing Clients About Attorney’s Fees, Litigation Costs and Settlement Proposals
- Being Open to Alternative Settlement Outcomes
Gary L. Brown, is an experienced construction litigator and Certified Mediator who has handled hundreds of construction and construction defect claims throughout his career and understands the unique dynamics and challenges these claims present. Implementing winning and cost-effective strategies, he has successfully resolved these claims for his clients. With this unique perspective, he understands how to effectively navigate through and simply often complex liability, damage, and insurance coverage issues to allow parties at mediation to compromise and resolve their construction disputes.
Portions of these written materials are reprinted with the permission of the copyright holder and publisher from Florida Construction Defect Litigation by Gary L. Brown, copyrighted by ALM Media Properties, Inc. and published by Daily Business Review Books, a division of ALM Media, LLC. All rights reserved. Copies of the complete work, including other construction litigation topics, may be ordered online at www.lawcatalog.com or http://www.lawcatalog.com/productdetail/18108/florida-construction-defect-litigation