Winning Construction Disputes: Strategic Negotiation for Better Outcomes

Construction projects are inherently complex, and disputes seem to be inevitable. Whether it’s a disagreement over defective work, delayed payments, or unforeseen site conditions, effective negotiation can mean the difference between a favorable settlement and an expensive, drawn-out battle. While many in the industry rely on traditional bargaining tactics or the principles from “Getting to Yes,” Chris Voss’s “Never Split the Difference” provides a tactical, psychological approach that can give contractors, owners, and attorneys a decisive edge.

1.  The Myth of Splitting the Difference

The title of Voss’s book is a direct challenge to one of the most common, yet flawed, negotiation strategies: compromise. In construction disputes, parties often propose to “meet in the middle” as a quick resolution. However, as Voss warns, “A woman wants her husband to wear black shoes with his suit. But her husband doesn’t want to; he prefers brown shoes. So what do they do? They compromise, they meet halfway. And, you guessed it, he wears one black and one brown shoe.” In construction, this can mean accepting an unsatisfactory repair or agreeing to partial payment for incomplete work—neither of which truly resolves the issue.

2.  “Negotiation is not an act of battle; it’s a process of discovery.”

In many ways, negotiation in construction disputes mirrors the discovery process in litigation—both are about uncovering critical information and using it strategically to shape the outcome. Chris Voss emphasizes that “Negotiation is not an act of battle; it’s a process of discovery.” This perspective aligns with how attorneys approach discovery in litigation: it’s not about immediately winning or forcing a resolution but about gathering facts, identifying leverage, and understanding the other party’s position. Just as depositions, interrogatories, and document requests reveal key insights in a lawsuit, skilled negotiators extract valuable information through calibrated questions, active listening, and tactical empathy. Both processes require patience and a keen ability to interpret what is said—and, just as importantly, what is left unsaid. While discovery in litigation builds the foundation for trial or settlement, negotiation aims to uncover the motivations and constraints of the opposing party to craft a more favorable resolution before legal costs spiral. Ultimately, whether in a courtroom or across the negotiating table, the party that gathers the most useful information holds the strongest position.

3.  The Power of Calibrated Questions

Another key strategy from "Never Split the Difference" is using calibrated questions to steer the conversation without triggering resistance. Instead of demanding concessions, ask open-ended, “How” and “What” questions that make the other party feel in control while guiding them toward your preferred outcome.

In construction law, disputes often arise over contract scope, delays, or payment issues. Attorneys representing clients in construction disputes can use calibrated questions during mediation or settlement discussions to uncover the opposing party’s true motivations. Instead of arguing over delay damages, an attorney might ask, “What challenges do you see in finalizing this agreement?” or “How can we structure a resolution that avoids further litigation?” These approaches keep the conversation constructive and reduce friction.

4. Conclusion

In construction law, negotiation is not about making quick compromises but about strategically guiding discussions to achieve favorable outcomes. Whether resolving claims for unpaid work, negotiating change orders, or settling defect disputes, attorneys and construction professionals must go beyond positional bargaining. By applying tactical empathy, calibrated questions, and a discovery-based approach, they can uncover leverage, defuse conflict, and structure agreements that truly work. As Voss teaches, negotiation is about communication with results—and in construction disputes, those results can determine the success or failure of a project. Mastering these techniques can help attorneys and industry professionals alike resolve disputes efficiently, saving both time and money while avoiding unnecessary litigation.

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Mohamed Asker is a member of Fox Rothschild’s national Construction Practice Group. For more information, please contact him at masker@foxrothschild.com.

This article is provided for informational purposes only—it does not constitute legal advice. Readers should consult legal counsel before taking action relating to the subject matter of this article.

Top 10 Take-Aways from the 2025 Mid-Winter Meeting in Tampa

The ABA Forum on Construction Law convened last week in Tampa, Florida for its Mid-Winter Meeting. This year's program was focused on owners and developers. Kudos to Jessica Courtway, Joel Heard, Keith Bergeron, and Tom Dunn for putting together an insightful slate of plenaries and activities. While it would be impossible to sum up everything I learned, below are my top 10 take-aways.

10. Dispute Review Boards are not just for public infrastructure projects. Usually comprised of a mix of 1-3 industry professionals, a Dispute Review Board ("DRB") can be implemented at the inception of construction projects to help quickly resolve disputes or, better yet, avoid them entirely. DRBs have been steadily gaining in popularity since their inception in the late 1970s. While used widely on large, publicly funded infrastructure projects, DRBs have yet to be fully embraced by the private sector. I moderated a panel comprised of Bill Franczek and Deb Mastin about the value DRBs can bring to complex, time-critical projects. At least one case study done by the Florida Department of Transportation suggests that the incidence of both time and cost overruns on projects that used a DRB were significantly less compared to projects that did not. While owners will need to build in a budget for the DRB members' fees, that expense is a small fraction of the total project cost and (much like the cost of a good insurance program) pale in comparison to the litigation costs which they could help avoid. And, since DRBs ensure contractors will have access to a dispute resolution process that is less owner-biased than the default situation (where the architect or government official serves as initial decision maker) some contractors have even expressed a willingness to lower their bid where an owner is willing to adopt a DRB for their project.

9. Doing what's right for the project may not coincide with what is cheapest. Despite the bias being that developers are all about maximizing returns, the best developers recognize that it is not all about the bottom line. Josh Taube, one of the headliners of the "Meet the Developers" panel shared that he will often spend more to get the best talent on the job. Joe Lopano (CEO of Tampa International Airport) spoke passionately about how he advocated for a tram-based system to convey travelers to the airport's remote rental care center; even though it was more expensive than a bus-based system, Lopano fought for it because he believed it was the right choice for the project. And Ed Kobel—who converts vacant office buildings into residential living spaces—discussed the focus his company places on the tenant experience which make his buildings a better place to live and deliver value by encouraging tenant retention. Kobel has learned that if a tenant makes just one friend in their apartment complex, there is an 87% chance they will renew their lease. As a result, his company focuses on how to create a design that fosters community.

8. Skipping out on independent project oversight can be penny wise and pound foolish. Owners oftentimes hire third-party owners' representatives to oversee their construction projects. Whether they should do so depends on a number of factors but should never come down to cost, according to panelists Laura Jo Lieffers, Diane Utz, and Brian Hanifin. Whenever the owner lacks the time, attention, or experience to ensure successful completion of the project, retaining the services of a separate owner's representative can be a good idea.

7. Maintenance considerations will be part of any successful design process.

I.M. Pei's Grand Pyramid

Panelists Mike Koger and Robin Zeidel spoke to the notion that more thought should be given in the design process to how a building will be lived in and maintained after the project is completed. Eliminating design elements which will be impractical to maintain should be at the forefront of any owner's consideration during the planning process. Such considerations will not always be made by the architect. After I.M. Pei designed the Grand Pyramid for the new entrance of the Louvre in the 1980s, it was not clear whether it could actually be cleaned. Since traditional scaffolding was not an option, mountain climbers were lowered down the face of the pyramid to do the work by hand until a special robot was developed to automate the cleaning process.

6. Attorneys should think twice before converting consulting experts into testifying experts. It is common practice for attorneys to hire a consulting expert to assist with case development at the outset of a dispute and designate that same expert as a testifying witness later in the case. While doing this achieves cost savings and reduces complexity, it is not ideal according to Harper Heckman, J. Paul Allen, and Jessica Knox. The better practice is to hire a different testifying expert and provide them only with the facts which they need to form an opinion in the case. In this way, communications with the initial consultant related to case/theory development will remain non-discoverable.

5. Cash flow is the oxygen that gives the project life. It’s not unusual for 60% of the cost of typical commercial and industrial real estate construction projects to be funded by debt. According to panelists, C. Randall Minor and Benton T. Wheatley, including debt in the capital stack can enable larger projects and spread the financial burden by aligning repayments with incoming cash flow from the project. Owners need to take care to comply with the disbursement requirements, however, so they don't negatively impact the flow of construction funding and potentially jeopardize the project altogether.

4. There are benefits in controlling the wrap insurance on any project. Most construction lawyers are familiar with Owner-Controlled Insurance Programs ("OCIPs") and Contractor-Controlled Insurance Programs ("CCIPs"). The main difference between the two different types of wrap policies is who between the owner and contractor will control and manage the program. Notwithstanding that the risk can be greater for whomever procures the coverage, Wendy Stein Fulton and Seth Schimmel always recommend that their clients be the one to procure the wrap coverage so they can ensure the premiums are paid and the necessary coverage is in place when it is needed.

3. Ensuring the ability to prove productivity claims is an exercise in good record-keeping.

The Division 1 lunch panel program (comprised of Leslie O'Neal, Brett Henson, David Ehrlich, Dr. Long Nguyen, and Tom Finnegan) was focused on the various factors that can result in lost labor productivity on construction projects and how such impacts can, and should, be substantiated.  Assuming the relevant contract documents do not foreclose disruption claims (some will), proving that the contractor should be entitled to more time or money due to labor impacts is not easy. It requires, at minimum, that the contractor be able to correlate its labor impacts to factors that were not anticipated and were outside its control. Some of the tools in project management software like Procore can assist with evaluating and either buttressing or undermining asserted productivity claims.

2. Balance is still needed in regulating board management of Florida's condominium associations. On June 21, 2021, Champlain Towers South, a 40-year-old condo building in Surfside, Florida, collapsed, tragically killing 99 people. The investigation that followed revealed that the collapse was precipitated by the failure of the waterproofing at the building's pool deck. The condo board had known about the issue for five years but elected not to address it since the repair carried with it a hefty price tag of $15 million. The Surfside collapse has become the hallmark example of what can occur when condo boards are permitted to defer necessary maintenance to spare their bottom line. While the pre-Surfside incentives certainly needed some re-alignment, according to panelists Dr. Evan McKenzie and Kristi Stotts, the Florida State Legislature may have gone too far in the opposite direction in adopting Florida Senate Bill 4-D. Senate Bill 4-D requires periodic benchmark inspections and establishes that the failure to reserve for necessary maintenance can be a breach of a volunteer condo board member's fiduciary duty. While well-meaning, Senate Bill 4-D has driven up the cost of condo living and devalued these assets overnight.

1. A diverse arbitration panel fosters a full and fair hearing of any dispute. Opting for arbitrators who have different identities, experiences, and backgrounds from one another is the best way to ensure that they will be less susceptible to "groupthink" and will reach a determination that is well-reasoned and fair. Professor Homer La Rue, Patricia Thompson, and Leah Wilson spoke of the need for ADR service providers to ensure that the panels from which arbitrators are selected are sufficiently diverse. And, since lawyers are less likely to recommend an arbitrator whom they don't know, diverse arbitrators need to do what they can to increase their profile among attorneys who may be in a position, one day, to retain their services. To that end, any arbitrators and mediators who are looking for a platform to publicize their experience and services will find a ready-made platform in Division 1 of the Forum. If you are an ADR professional and are interested in being added to Division 1's directory of ADR neutrals and/or profiled as part of our "Meet the Neutrals" series, please contact me at mdowns@lauriebrennan.com.

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Author and Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Understanding the Limits of Privilege When Applied to Witness Prep Sessions

In my last post, Ethical Limits on Preparing a Witness for Deposition or Trial, I took a brief look at the ethical limits on preparing a witness for trial or deposition. This post will continue on that theme and examine the scope of privilege in connection with preparing witnesses for deposition and trial.

Typically, a meeting with a client or client representative to prepare deposition or trial testimony will be covered by attorney-client privilege. Both the communications between an attorney and the client or client representative in preparation to testify are privileged as are the documents provided by the attorney to the client to review in preparation for testify.[i] That privilege will typically apply to all employees of a corporate client, not just the control group or high-level management of the corporation.

However, it is important to note that not everything discussed with a client or client representative in preparing for a deposition is going to be protected by privilege. One such limitation is Federal Rule of Evidence 612 which provides in pertinent part:

if a witness uses a writing to refresh memory for the purpose of testifying, either—

 

(1) while testifying, or

 

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

 

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Most cases hold that FRE 612 applies to depositions, but there a few cases that take a contrary position.[ii] Most cases hold that if a document is used to refresh a witness’s recollection in preparing a witness for their deposition, the party examining the witness is entitled to disclosure and production of the document used to refresh the witness’s recollection.

Rule 612 likely applies when the document used to refresh the witness's recollection would otherwise be subject to work-product privilege or attorney-client privilege. Some cases that hold that the waiver under FRE 612 of any work-product privilege or attorney-client privilege that might otherwise apply is automatic when a document is used to refresh the recollection of a witness, while other courts apply a balancing test looking to whether disclosure is needed for a fair cross-examination of the witness or whether the examining party is engaged in a fishing expedition.  

Under the reasoning of the Supreme Court decision in Upjohn Co. v. United States, almost all courts hold that attorney-client privilege applies to communication between an attorney representing a corporate client and the former employees of the corporate client.[iii] Communication between counsel and the former employees are protected by the attorney-client privilege if the communication focuses on what the former employee knows as a result of the former employment about the circumstances giving rise to the lawsuit. However, examining counsel has the right to ask about matters that may have affected or changes the witness’ testimony, such as communication between counsel and the former employee that goes beyond the former employee’s knowledge of the circumstances at issue and beyond the former employee’s activities within the course of his employment.[iv] Nonetheless, pre-deposition communication with a former employee may be subject to the work-product privilege to the extent that they communicate counsel’s legal opinions and theories of the case.

However, not all courts take the position that attorney-client privilege applies to communications between corporate counsel and the former employees of the corporation. In Newman v. Highland School District No. 203,[v] the Washington Supreme Court declined to extend attorney-client privilege to all communications between counsel for a school district and the former employees of the school district.

Newman involved a negligence suit seeking damages for a permanent brain injury suffered by a student athlete during a football game. The former employees, football coaches, were represented by counsel for the school district for the purposes of their depositions. Counsel for the plaintiff sought to disqualify counsel for the school district from representing the former employees. The lower court denied the motion but ruled that counsel for the school district could not represent non-employee witnesses in the future.

Counsel for the plaintiff also sought discovery concerning communication between counsel for the school district and its former employees. The lower court held that attorney-client privilege did not apply to any communication with the former employees outside of the deposition representation. The Washington Supreme Court ultimately held that the lower court properly rejected the argument that the former employees should be treated the same as current employees for attorney-client privilege purposes and appropriately only allowed the school district to assert attorney-client privilege over communications during the time that the school district’s counsel “purportedly represented them at their depositions.”

In situations where a former employee is represented by counsel for a defendant corporation for the purpose of testifying at a deposition at no cost to the former employee, courts have generally not treated the former employee as having an independent right to assert attorney-client privilege, even when the employee believes that the employee is being represented by the attorney.[vi] Although, as discussed above, the Washington Supreme Court in Newman v. Highland School District No. 20 appears to have reached a somewhat different conclusion.

Finally, there is likely no privilege associated with preparing a third party who is not a client or former employee of the client. Typically, there is no attorney-client privilege with a third party absent a common interest privilege, and disclosure of work-product to a third party with whom there no is common interest privilege waives the work-product privilege. As one court has stated: “The ability of a party to meet with a non-party witness, show him documents and ask him questions and then mask the entire preparation session in the cloak of work product protection would serve to facilitate even the most blatant coaching of a witness if it could not be the subject of inquiry.”[vii]

In conclusion, in most cases, deposition prep meetings with a current or former client representative (as well as the documents selected by counsel for the client or a client representative to review) will be privileged. But, if a document is used to refresh a witness’s recollection, even a document that is otherwise subject to attorney-client or work-product privilege will be subject to production in most cases. Additionally, any communications with a former employee that go beyond the former employee’s activities within the scope of his or her former employment may not be protected by privilege.  Finally, absent a common interest privilege, in most circumstances, there will not be any privilege for communications with a non-client regarding deposition or trial testimony preparation.

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Author and Editor Stu Richeson is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.

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[i] Alexander v. F.B.I., 186 F.R.D. 200, 203 (D.D.C. 1999).

[ii] Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389 (D. Or. 2017).

[iii] Gary Friedrich Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y. 5/20/2021).

[iv] Globalrock Networks, Inc. v. MCI Communications Services, 2021 WL 13028650 (S.D.N.Y. 5/7/2012).

[v] 186 Wash. 2d 769, 381 P.3d 1188 (2016).

[vi] Gary Friedrich Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y. 5/20/2021).

[vii] S.E.C. v. Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012).

Meet the Forum's Neutrals: HON. LISA R. CURCIO (Ret'd)

Company: ADR Systems

Office Location: Chicago, Illinois

Email: lrcurcio54@gmail.com

Website:  https://www.adrsystems.com/neutral/hon-lisa-r-curcio-ret/

Law School: Loyola University of Chicago (J.D. 1989)

Types of ADR services offered: Mediation, Arbitration, Neutral evaluation

Affiliated ADR organizations: ADR Systems

Geographic area served: Illinois

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Q: Describe the path you took to becoming an ADR neutral.

A: I was a judge in the Circuit Court of Cook County, Illinois for over 15 years. I regularly conducted settlement conferences in the cases that were before me.

Q: What percentage of your current legal practice is spent on ADR work? 

A: 100%.

Q: Describe your background and experience mediating construction cases?

A: For the last eight years of my judicial career I was assigned to a call dedicated to Mechanics Lien cases, which, of course, involved all aspects of construction disputes.  Since retirement in April, 2018, I have focused my mediation practice on construction cases.    

Q: What should attorneys and their clients take into consideration when selecting a mediator?

A: Experience, legal and subject matter knowledge, recommendations of other attorneys and of case administrators.

Q: Do you have any practices that you find make you particularly effective as a mediator?

A: Mediation is a process, not an event. Successful mediation requires early communication with attorneys and their clients to learn about their positions, claims and issues, potential barriers to settlement, and whether they have enough information to have an effective mediation session. I use these communications to help set expectations and make a plan for the in person mediation session.  I follow up on my cases that do not settle at the mediation session.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Prepare them for the process. Help them understand that the mediator is a neutral and will not be deciding the case. Work through an objective risk/benefit analysis. 

Q: What experience do you have arbitrating construction cases?

A: Since retiring from the bench, I have arbitrated multi-party and two party construction disputes involving contractors, design professionals and owners. 

Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?

A: Legal and subject matter knowledge. I recommend consulting with others who have knowledge of the arbitrator. 

Q: What factors should parties consider when  deciding whether to opt for a single arbitrator or a panel?

A: Cost, efficiency, need for multiple perspectives. 

Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?

A: I require parties to comply with rules designed to use only necessary discovery and rules of evidence, encourage cooperation in implementing the rules, and limit motion practice to motions designed to narrow issues or that are based upon only legal questions. 

Q: What limits do you place on discovery in the arbitration context?

A: Discovery should be tailored to the dispute. Simple two-party cases can be arbitrated with basic document exchange and very limited depositions. Complex disputes might require more formal document production with considerations of ESI, targeted fact depositions, experts, and third-party discovery. It is incumbent on the arbitrator(s) to work with the parties to determine what discovery is really needed for a fair but cost and time efficient resolution. 

Q: What are some of your interests or hobbies?

A: I am an avid boater.

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Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.