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.