Yet, when these projects devolve into litigation, the legal community
often abandons the logic of sequencing. We rush headlong into "The
Mediation Day"—a high-stakes, expensive, one-day marathon where we expect
dozens of parties, hundreds of insurance layers, and thousands of pages of
expert reports to magically align into a settlement by 6:00 PM.
As we open our calendars for the new year, it is time for a professional
resolution. We must stop treating mediation as a single-day event and start
treating it as a managed, sequenced process. The centerpiece of this resolution
is the “Tee-Up Day.”
The Tee-Up Day is based on techniques I learned from Master Mediator
Rob Mann and John Hanover. I built upon
those foundational lessons from Messieurs Mann and Hanover and formed my own
mediation path which has proven to be a successful mediation structure.
Before I describe what the Tee-Up Day is and why it is important, we must
first understand why so many mediations fail when attempted without one.
I. The Anatomy of a Failed Mediation
In the context of Construction Dispute Mediation, we often deal with
complex disputes involving multi-family defects, infrastructure failures, or
high-rise delays. These cases are not just two-party brawls; they are multi-party
ecosystems.
The traditional mediation model—one day of breakout rooms and turkey sandwiches—frequently fails in these ecosystems. The failure usually follows a predictable script:
- The Information Gap: A carrier sees an expert report for the first time at 11:00 AM.
- The Authority Vacuum: The adjusters in the various rooms realize the "Additional Insured" (AI) priority is disputed, meaning they cannot access the excess layers.
- The Legal Impasse: The parties spend four hours arguing over the Statute of Repose instead of negotiating the cost of the HVAC repair.
By the time the sun sets, the mediator is left doing "post-mediation" work for months. The "Tee-Up Day" resolves this by pulling that work to the front of the schedule.
II. What is the “Tee-Up Day”?
The Tee-Up Day is a formal, session held with all mediation participants
(typically by Zoom or other remote means) 60 to 90 days before the
actual Mediation or “Money Day” of negotiations.
In this session, the goal is not to exchange dollars. In fact, talking
about the "final number" is often discouraged. Instead, the parties
resolve to settle the Scope of the Dispute.
The focus is to achieve agreement on the issues to be negotiated in the
future Mediation.
- Legal Claims/Defenses: What claims do the parties
believe can be eliminated due to legal barriers or other infirmities?
- Indemnity Obligations: Which subcontractors are
contractually obligated to defend the GC? If there is a
"Knock-for-Knock" agreement or a complex
"Anti-Indemnity" statute at play, those issues can be debated
here.
- The Law of the Case: Stipulating to the applicable
state law or the version of the AIA documents that govern the dispute.
- Expert Reports:
Which expert reports will be included, and which will be excluded?
III. The Insurance Roundtable: Closing
the Coverage Gap
Perhaps the most significant "mediation killer" is the lack of
insurance alignment. In a typical defect case, you have a "Tower of
Power"—primary, umbrella, and excess carriers across multiple policy
years.
The Tee-Up Day includes a dedicated Insurance Roundtable. This is
a carriers-only session where the mediator facilitates a "Coverage
Mapping" exercise.
- Priority of Coverage: Who is primary? Who is
"Other Insurance"?
- The SIR Exhaustion: Have the Self-Insured Retentions
been met by defense spend?
- Reservation of Rights (ROR): What are the
"uncovered" elements? If the carrier is reserving rights on the
"Your Work" exclusion, the parties need to know that now,
so the client can prepare to contribute "corporate money"
alongside "insurance money."
IV. The Blueprint: A Sample Tee-Up
Agenda
To implement the Tee-Up Day the mediator needs buy in from counsel and the carriers. Below is a suggested framework for this session:
A. Procedural Sequencing: Confirming all "Must-Have" documents (Procore logs, BIM models, and testing data) have been exchanged.
B. The Legal "Scope": Identifying dispositive motions that could shift the risk (Statutes of Repose/Limitation).
C. The Insurance Matrix: Mapping the coverage tower and AI tenders.
D. Logical Bracketing: Agreeing on the "Floor" (undisputed repair costs) and the "Ceiling" (total exposure).
E. The Decision-Maker Audit: Identifying exactly who needs to be at the final session and what information they need to secure "Ultimate Authority."
V. Managing the "Alpha"
Personalities
Construction litigation attracts high-achieving, aggressive
personalities. The Tee-Up Day provides a "venting valve." Lead trial
counsel can argue their positions, experts can puff their chests, and the
parties can get the "posturing" out of their systems.
When the parties return for the "Money Day" a couple months
later, the emotional temperature is lower. The "War Stories" have
been told. The focus shifts from "Who is right?" to "How do we
get this resolved?”
VI. The Cost-Benefit Analysis
Critics may argue that adding a second day of mediation increases costs.
However, the opposite is true. Some of the many benefits of a Tee-Up Day
include:
- Avoiding "Failed"
Mediations: The cost of a "failed" mediation goes beyond the time lost
in the process which, with multiple attorneys, experts and carriers, is not
insignificant. The cost of a failed mediation is higher when you consider
the legal expense and lost business opportunities which are incurred after
the failed mediation because the parties remain committed to a course of
conflict.
- Narrowing the Expert Focus: If the Tee-Up Day results in a
stipulation that the "Roof is not leaking," the parties can
cancel $20,000 worth of roofing expert testimony for the final session.
- The Virtual Advantage: Because the Tee-Up Day is
focused on data and law rather than the "closing" of a deal, it
is highly effective on narrowing the scope of the future mediation
sessions.
VII. Conclusion: Building a Culture of
Resolution
Most mediations do not fail because of a lack of will; they fail because of
a lack of sequence. They fail because we try to hang the "curtain
wall" of a settlement on a "structural frame" of insurance and
legal issues that have not yet been bolted down.
The Tee-Up Day is our way to sequence the mediation and prepare it
for the critical path towards resolution. It is the recognition that a $50
million dispute cannot be solved by accident; it must be solved by design. By
resolving to adopt a sequenced, phased approach to mediation, we honor the
industry we serve. We engage in a
logical path of planning and preparation to build the foundation for a
successful mediation.
Author Joël Bertet provides mediation services focused on resolving disputes in the construction and real estate sectors. With 30 years of experience, Joël is an established construction lawyer, legal advisor, licensed General Contractor, and Licensed Real Estate Broker. Joël can be contacted at joel@resolvebertet.com.
