Tuesday, September 2, 2025

Making the Case for Standing Construction Mediators on Every Complex Construction Project

Construction abandonments of private projects have hit an all-time high. Private developers scrapped more projects in May 2025 than in any other month on record, according to the latest data from Cincinnati based ConstructConnect.

The Project Stress Index is a measure of construction projects that have been paused, abandoned, or have a delayed bid date. “Abandonment activity has continued to rise, reaching its highest reading in over a year,” said Devlin Bell, associate economist at ConstructConnect. For the month of May 2025, private abandonments increased 62.6% over the month and are now up 92.2% year over year. That surge has led to the highest level of abandonments since ConstructConnect began tracking data in mid-2019.

On top of that, contractors are facing increased cost pressures as prices for key materials surge under the Trump Tariffs. “The acceleration in the year-over-year rate of increase is alarming, given that most of the tariffs announced so far were not in effect when these prices were collected…It is likely that contractors will be hit with substantial additional price increases shortly, unless the tariffs are rolled back,” said Ken Simonson, Chief Economist at the Associated General Contractors of America.

This level of stress sets the stage for a coming storm of epic disputes in the construction industry. Those that prepare for the storm by taking proactive steps to prepare will fare better than those that simply wait for the post storm clean-up efforts.

The Case for Standing Construction Mediation

Construction is a technical and complex industry. The best drafted construction contracts attempt to consider the complex and shifting sands in a construction project. Common issues such as change orders, cost overruns, changes of scope, building code challenges and even tariffs are now commonly dealt with. Even so, disputes are bound to arise and are part of the process. It is a process that is traditionally full of challenges and problems. The best players in the industry understand this difficult and challenging process and tend to be experts at getting to the finish line through the mine field.

However, even the best of the best will be challenged when the industry faces this tsunami of economic challenges. Record-breaking abandonments coupled with unforeseen cost increases have set the stage for an explosion of construction disputes. Construction projects under normal economic times are fraught with challenges and disputes. We are now treading in unchartered waters where tariffs and economic indicators are putting untold pressures on the industry. The normal number of disputes and complexity of the challenges have just become multiplied by exponential levels. 

A Standing Construction Mediator contracted on your project is your construction litigation insurance policy. No one would build a construction project without insurance. Insurance coverage is a fundamental part of any construction project. Insurance coverage often times continues for years after project completion. It would be unfathomable for anyone to build without insurance coverage. 

Why would you get into a project knowing that disputes will be exponentially higher than in previous years without a mediator on hand to help navigate the guaranteed problems and disputes.

Yet we build without mediation coverage. A Standing Construction Mediator is your insurance policy against the growing risk of construction dispute in today’s economy.

The Benefits of Standing Construction Mediation

A Standing Construction Mediator becomes an integral part of the construction project from the outset. They are brought into the project by the owner early in the process at the time of selection of Architects, Engineers and General Contractors. The Standing Construction Mediator (SCM) is proficient in the technical world of construction and is familiar with the fundamental areas of construction such as finance, architectural plans, engineering plans, building process, general contracting, sub-contracted trades, suppliers and building codes. The SCM will be written into all contracts with key parties and shall be ready to serve anyone who has a dispute that arises during the project. Time is of the essence in a construction project and delays caused by disputed change orders requests, disputed cost overruns disputes and delayed performance result in enormous costs to all the parties involved.  When these disputes cannot be resolved quickly and efficiently, they morph into legal battles which often times get put onto the back burner to be resolved through litigation after completion of the project. Meanwhile, the dispute at hand will cause costly delays, mechanics lien issues, stop orders, and cash flow challenges for all affected parties.

With a SCM involved in the process such disputes can be resolved immediately because:

1) The SCM is familiar with the full scope of the project having reviewed all key construction documents and all key player contracts (GC, Subs, Suppliers, Architects, Engineers and related professionals). 

2) The SCM is included in all contracts along with the process for dispute resolution during the course of construction. 

3) The SCM makes themself immediately available to resolve all course of construction disputes either by in person at the construction site or via zoom.

4) The dispute is resolved immediately and before it has a change to grow from spark to fire.

5) There is a balance of power between all parties allowing for equal access to dispute resolution during the construction process.

An Example of SCM at Work

A tile subcontractor is hired by the General Contractor (“GC”) on a hotel project to supply and install tile specified according to plans. The installation schedule is moved back six months due to construction delays caused by building inspection corrections. The tile subcontractor was informed of the six-month delay and, as a result, does not purchase the tile for another 5 months to preserve cash flow. Five months later, tile subcontractor is informed by tile supplier that there is an increase of 20% on the tile due to tariffs and increased shipping costs and that the tile is now on back order and will not be available for another 4 months. The additional 20% charge in tile will cost the tile subcontractor $50,000. The tile subcontractor also loses another job where it could have made $500,000 profit which it had scheduled to start in six months. The tile subcontractor informs the GC that there will be: 1) a $50,000 change order; 2) 4 months further delay; and 3) a consequential damage claim for its lost $500,000. 

The GC refuses the change order of $50,000 stating that the tile subcontractor should have purchased the tile earlier. The GC then informs tile subcontractor that it must start in six months, and that the extra 4-month delay is not the GC’s problem. The GC sees the $500,000 lost profit claim as an insult and is now more inclined to fire the tile subcontractor, hire another sub, and hold the tile subcontractor liable for additional costs involved.

Without an SCM, this would have a classic end with the tile subcontractor walking off the job and ending the relationship with this GC. The GC would hire a substitute tile subcontractor at a higher cost resulting in his presenting the owner with a change order resulting in added friction or possible litigation between the owner and GC. The GC who played hard ball with the tile subcontractor would now find himself at the mercy of the owner who would tell the GC he was hired to manage all subs and suppliers and that he should have verified that the tile was purchased on time instead of relying on a tile subcontractor and thus was not paying for the additional cost of tile or the new tile subcontractor costs.

With an SCM, the tile subcontractor would have called the mediator and requested an immediate mediation of the matter. The SCM is on call for precisely this type of dispute and would immediately rise to the challenge. A mediation would be immediately scheduled and either through on-site visits, phone calls or zoom meetings, a successful mediated settlement would result. Solutions agreed to, delays minimized, relationships preserved, and the project continues with a reasonable settlement of the dispute. 

Why not simply bring in a traditional mediator to address such issues. Why the need for an SCM?

1) Expert construction mediators are normally booked out for 6-12 months.

2) General mediators with no construction specialization are less well equipped to deal with such technical disputes and are usually not immediately available either and can be cost prohibitive. 

3) The SCM is precisely contracted for this scenario and is already familiar with the scope of work and all contracts and is “on call” to resolve these types of disputes.

What is the Process for Hiring an SCM?

An SCM is typically brought into the project before any key contracts are signed. An initial flat fee is paid to the SCM for review of the scope of work and for involvement in contract review and SCM contract terms.

Next, the SCM process is included in all contracts between the parties with clearly defined steps for mediation of disputes arising during and after project completion. A fixed hourly rate is set for the SCM services which is split evenly among the interested parties.

The parties are introduced to the SCM early in the process and are provided all the information necessary for them to understand how they can get the SCM involved to help mediate and resolve disputes as they arise.  Should mediation not resolve the dispute, the parties are free to continue the traditional trajectory towards litigation (or arbitration).

Given the recent statistics which will give rise to enormous construction disputes, it is now more important than ever to have the insurance of a SCM on retainer to push projects through the steps of completion rather than to the steps of the courthouse.


Author Joel Bertet provides mediation services focused on resolving disputes in the construction and real estate sectors. With 30 years of experience, Joel is an established construction lawyer, legal advisor, licensed General Contractor, and Licensed Real Estate Broker. Joel can be contacted at joel@resolvebertet.com.

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