Showing posts sorted by relevance for query bertet. Sort by date Show all posts
Showing posts sorted by relevance for query bertet. Sort by date Show all posts

Tuesday, September 16, 2025

Muhammad Ali, a Chocolate Chip Milk Shake, and a $100 Dollar Bill

In 1982, I was 16 years old and was attending a tiny Jewish high school in the basement of Temple Beth El on Crescent Heights. Upon my daily release from the dungeon, I would walk up to Sunset Boulevard to go to Schwab’s Pharmacy where I could grab something to eat. Schwab’s closed later that year, and I didn’t know it would be one of the last times for me to hang out at the favorite place of James Dean, Marilyn Monroe and Elvis Presley. On my way there, I would walk pass Coconut Teaszers, a punk rock venue, and Baskin Robbins Ice Cream Shop.

When I needed a job to buy a car, the manager at the Baskin Robbins (who was a friend of mine) hired me. Every day after high school, I scooped and restocked ice cream, mopped the floors, cleaned the bathrooms, and wore a silly uniform that invited my friends to come by to tease me. The job wasn't glamorous, but I was happy to earn some spending cash to buy the much-desired parachute pants and moon boots so I could dress the part for the upcoming Duran Duran concert at the Forum.

One day, a Rolls Royce drove into the parking lot and out came a tall, well-dressed man. He walked up to the counter to place an order. Looking at him, it took me a few seconds to register it was Muhammad Ali. “Muhammad Ali!” I blurted out. He responded, “Yes, that’s my name. Now here is what I want you to make me.” He continued, “I want a milk shake with chocolate chip ice cream and vanilla syrup.”  “Yes sir”, I said, and off I went to make a milk shake for the Champ. My co-worker was as stunned as I was; we worked in tandem making the best chocolate chip, vanilla syrup milkshake in the world. We blended the frozen concoction and proudly served it up in a large paper cup. “Would you like whipped cream Mr. Ali?” I asked. “No thank you,” he replied. As I handed him the milkshake, he popped a $100 dollar bill onto the counter and said, “keep the change.” And just like that he was gone.

At 16 years old working for $3.35 an hour I don’t know if I was more shocked by meeting the Champ or by realizing my cut of the $100 was $50. We didn’t even ring up the sale, we simply put the $100 dollar bill in the register, and each took out $50. When we told the store owner what had happened, he smiled and said “yep, Ali comes in here all the time, usually on a Thursday afternoon.” Guess who was on the schedule every Thursday?

I only saw the Champ two more times. But it was the same routine: chocolate chip shake, vanilla syrup, and a $100 dollar bill. The only difference was, once we saw that Rolls Royce drive in, we raced to work making sure that shake was ready for Mr. Ali the second he walked in the door. He smiled with pleasure knowing that we respected that the Champ should not be kept waiting a second for his treasure. We proudly presented his order before he needed to ask for it. “Mr. Ali, your chocolate chip shake with vanilla syrup.” Each time, he would smile and place a $100 dollar bill on the counter before leaving.

There wasn’t anyone there to see Mr. Ali's graciousness. But what he did made a difference in the life of a young punk. Was he even there for a chocolate chip shake or did he just love the idea of treating us to his presence and generosity?

My job at Baskin Robbins ended in infamy when I instigated an ice cream food fight and was subsequently fired, but my memory of serving “The Greatest” will forever be frozen in my mind.


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.

Wednesday, December 17, 2025

Message from the Chair: Joe Imperiale (Volume II)

When I last wrote, I had just stepped into the role of Division 1 Chair, and now, somehow, 2025 is already coming to a close. Chairing Division 1 has confirmed many things I already knew about the ABA Forum—and taught me a few new ones. Let me share seven lessons learned that recap 2025. 


1. The Division 1 Steering Committee is determined to leave Division 1 better than they found it.

As with anything great, it starts with the people. If Division 1 looks like a well-oiled machine from the outside, it’s only because of the talent and hard work of its Steering Committee. This group of talented construction lawyers from around the country are at the forefront of construction litigation and dispute resolution trends and share their experience with Division 1’s significant membership through their work on the Steering Committee. The Division 1 Steering Committee currently consists of the following lawyers:

The Steering Committee members help put together a remarkable amount of programming that is offered by Division 1, including:

  • The Dispute Resolver blog, providing weekly content on construction disputes, trends, and practical tips.
  • Toolbox Talks, our web-based, half-hour, lunchtime webinars throughout the year on topics relevant to construction industry dispute resolution.
  • Three-hour practicums at each national conference, giving construction litigators real-world, hands-on skills and lessons from experienced practitioners and industry experts.
  • National conference lunch programs on timely and practical topics.
  • Division 1 social events that keep our community connected, collaborating, and occasionally arguing about who has the best expert cross-examination war story.

Delivering this much high-quality content is no small task, and I thank them all for their service. 


2. The future is bright for Division 1.

Having a successful division takes more than just a Steering Committee
and necessitates that other members of Division 1 step up to get involved. The number of talented people whom I see raising their hands for the first time to participate in Division 1 is genuinely heartening. 

Among those who have stepped up to lead initiatives: 

  • Wendy and Sean addressing the Division 1 lunch in Louisville
    John Gazzola (John Gazzola | Troutman Pepper Locke) serves on the Toolbox Committee, organized our social in Louisville, and is organizing our practicum in Dana Point—proof that if you do a job well in Division 1, we reward you with…more jobs. 
  • Doug Mackin (Doug Mackin | Cozen O’Connor) serves as Division 1’s liaison to the Forum’s publications committee, plugging Division 1 members in writing opportunities.  

I am undoubtedly leaving people out, and there are more contributors mentioned below, but with this kind of energy and expertise in the ranks, Division 1 is in very good hands for years to come.


3. THE DISPUTE RESOLVER is the source for construction litigation and industry trends. 

If you’re not already reading The Dispute Resolver, this is your gentle nudge to start. It is, without question, a go-to source for:

  • Timely updates on construction litigation
  • Industry trends and practical insights
  • News on the business of Division 1 and the Forum

The blog runs like clockwork, regularly putting out high-quality content. Marissa Downs and Jessica Knox deserve enormous credit for this. They have taken a blog founded by Tony Lehman and Tom Dunn and, dare I say it, brought it to its pinnacle under their leadership. Thanks to Marissa and Jess’s upcoming editorial team (many of whom are returning veterans) for their great work and dedication to the upcoming blog year: Andrew Vicknair, Brendan J. Witry, Brett Burney, Dakota (Knehans) Atuan, Debrán L. O'Neil, Joel Bertet, Lisa D. Love, Patrick McKnight, Stuart Richeson, Troy Mainzer, Tyler Lloyd and Thanh Do.  


4. Division 1’s Toolbox Talks are your lunchtime source of construction litigation information.  

The number of people tuning in for our 30-minute, lunchtime quick-hitters is a testament to both the topics and the presenters. Whether it’s AI, procurement, or the latest twist in dispute resolution, our Toolbox Talks have become a great opportunity to get involved and learn something new. 

Brett Hensen and his committee have done an outstanding job curating programs that are:

  • Short enough to fit into a busy day
  • Substantive enough to be truly useful
  • Popular enough that people keep coming back for more

Thanks to Brett’s TBT Committee: John Gazzola, Thomas Cuneo (Thomas Cuneo | Ankura.com), Michael Martin (Michael Martin | VERTEX), Steve Warhoe (Stephen P. Warhoe | Long International) and Matt Argue (Matt Argue | One Mediator, Inc.) for their great work.  And I know that Dana Chaaban and Eric Meier will do a great job leading this effort moving forward. 


5. Practicums, celebrating their 10-year anniversary, continue to deliver.

Chris, Matt and Harper speaking at the Fall Practicum
My first practicum as Division 1 Chair featured Chris Dunn (Chris Dunn | Winstead PC), Matt Gillies (Matt Gillies) and Past Forum Chair Harper Heckman (Harper Heckman | Maynard Nexsen), who delivered a master class on “Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes” from the perspectives of the Owner, Contractor, and Designer. 

It was exactly what a practicum should be:

  • Practical
  • Lively
  • Rooted in real-world experience
  • And full of those “I’m going to steal that clause/argument/example” moments that make in-person programming so valuable 

If you haven’t attended a practicum yet, consider this your official invitation for Dana Point, California on February 4 Forum on Construction Law Events.


6. The ABA Forum on Construction Law is an unrivaled professional community.

If there is one thing this role has reinforced, it is that the Forum is a truly special professional community.

Where else can you:

  • Advance your career
  • Deepen your expertise
  • Meet people from across the country (and beyond) who do what you do
  • Learn in beautiful locations 

The Forum is full of smart, generous, and genuinely good people. When we needed someone to join Sean Dillion at our Louisville lunch program, past Chair of the ABA Forum, Wendy Venoit, stepped right in and said, “I’ve got it”, sharing pearls of wisdom from her extensive experience. It’s a place where competitors become collaborators, mentors become friends, and “networking” often looks suspiciously like having fun.


7. I am tremendously grateful for the opportunity to lead Division 1.

A lot of work by a lot of people goes into running Division 1. From our Steering Committee, to our presenters and writers, to our volunteers and participants—this truly is a group effort.

Being Chair of Division 1 has been a privilege. It is a pleasure to help lead this group of construction professionals, advocates, problem-solvers, and all-around good people. I am enjoying every moment of it and am constantly impressed by the creativity, commitment, and generosity within our Division.


Happy Holidays and Cheers to the New Year

I wish you and your families a joyful, peaceful holiday season. Here’s to a wonderful holiday season and to an even brighter, busier, and better 2026 for Division 1 and the ABA Forum on Construction Law.


Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.

Tuesday, January 6, 2026

New Year’s Resolution: Engineering the “Tee-Up Day” for Complex Construction Mediations

The construction industry is defined by its commitment to "Critical Path" scheduling. From the moment a project breaks ground, every stakeholder—from the MEP sub to the owner’s rep—is focused on sequencing. We know that you cannot hang drywall before the rough-in is inspected, and you cannot pour a slab-on-grade until the vapor barrier is verified.

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.

Let 2026 be the year we stop performing autopsies on failed mediation attempts and start building robust, stable mediations—one Tee-Up Day at a time.


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.

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.