Construction disputes are technical, document-intensive, and expensive to litigate. They typically involve multiple parties across the construction chain, sequential and sometimes overlapping contract relationships, statutory frameworks that are specific to construction and that most non-construction lawyers do not work with regularly, and damages theories that combine liquidated damages provisions, delay claims, defective work claims, and consequential losses in ways that can produce very large numbers even in matters that started small.
What follows is what I bring to the mediation or arbitration of construction disputes as a neutral with active commercial litigation experience in Florida, and why the specific structure of construction disputes rewards a neutral with the litigation background to work through them efficiently.
What construction disputes actually involve.
Construction disputes in Florida include claims arising from contracts between owners and general contractors, between general contractors and subcontractors, and between all levels of the construction chain and design professionals, suppliers, and sureties. The disputes cover the full life of construction matters: change orders and scope disputes, delay and disruption claims, defective work claims, mechanic's lien enforcement and defense under Chapter 713 of the Florida Statutes, bond claims under the Little Miller Act framework where public work is involved, and disputes involving the surety's obligations under performance and payment bonds.
The disputes often involve multiple parties in the same proceeding because the construction relationship is inherently multilateral. A defective work claim against a general contractor typically involves subcontractors whose work is at issue, a design professional whose specifications or supervision may be relevant, suppliers whose materials may have contributed, and a surety whose bond may respond. Neutrals handling construction matters need to be comfortable with the multi-party structure and with the interaction of the multiple claims that typically travel through the same proceeding.
Why the technical structure of construction matters rewards active litigation experience.
Construction disputes turn on documents. The contract documents, the plans and specifications, the requests for information, the change order documentation, the daily reports, the schedule updates, the payment applications, the correspondence, and the expert reports form a body of material that can run to tens or hundreds of thousands of pages in a significant matter. A neutral who has actually worked through construction documents as counsel knows how to read them, knows what to look for, and knows what the documents actually establish. A neutral without that experience is dependent on counsel's characterizations of the record, which is not the same thing as understanding the record.
The substantive law adds its own complexity. Florida mechanic's lien law under Chapter 713 has particular requirements for notices of commencement, notices to owner, claims of lien, and the interaction of the lien statute with the payment bond statute, and the appellate courts have developed a substantial body of case law on the specifics. Delay claim analysis involves critical path methodology, concurrent delay allocation, and the interaction of contractual notice provisions with the equitable doctrines that overlay them. Defective work claims involve technical questions of workmanship, code compliance, warranty, and the statute of repose under Section 95.11(3)(c). Each of these areas is its own working practice, and a neutral without active exposure to them is not going to be as useful to the parties as a neutral with current experience.
How the multi-party structure changes the mediation dynamics.
Construction mediations often involve four or five or six parties around the table, sometimes more when the surety and the design professional and the supplier are all involved. The dynamics are meaningfully different from the two-party mediation that most mediators think of as the default. Cross-claims and third-party claims produce settlement architecture that has to work for multiple pairs of parties simultaneously. Contribution and indemnity claims among defendants can produce settlement structures where one party's contribution depends on another party's willingness to contribute. Insurance coverage overlays add another layer of complexity in matters involving covered defects.
A neutral who has litigated construction matters as counsel understands the multi-party settlement dynamic from experience. That understanding produces mediation strategies that account for the interaction of settlement possibilities across pairs of parties, rather than treating each pair as if it were an independent negotiation. The settlements that work in multi-party construction matters are the ones where the neutral has kept track of how the pieces fit together, which requires both the substantive familiarity with construction law and the practical experience of multi-party negotiation.
What I bring to construction disputes as a neutral.
My commercial litigation practice has included construction matters for more than thirty-seven years, on both the plaintiff and the defense side. I have handled contract disputes across the construction chain, delay and disruption claims, defective work matters, mechanic's lien enforcement and defense, and the multi-party proceedings that construction disputes typically produce. The litigation practice remains fully active.
What I bring to the mediation of a construction matter is a working understanding of the documents, the substantive Florida construction law, the multi-party settlement architecture, and the current cost calculus of continuing the litigation. What I bring to the arbitration of a construction matter is the same substantive framework applied to the adjudicative role, with attention to the procedural questions that construction arbitration typically raises about scope of discovery, expert testimony, and the interaction of the arbitration proceeding with related litigation involving parties who are not signatories to the arbitration clause.
Counsel handling construction matters in mediation or arbitration who want to discuss a specific case are welcome to reach out. Consultations before a matter is set are not billed.