Thinking Beyond the Dispute Resolution Provision in Construction Disputes

Benjamin Pollock | King & Spalding | June 5, 2017

When parties cannot resolve a claim during a major construction project, the contracts dispute resolution provisions do not always need to read as step-by-step instructions. To the contrary, the situation may warrant a different approach that can be negotiated after the dispute arises. While agreement certainly is required to deviate from the contractual obligations which themselves reflect the parties prior and current agreement other options can be considered and proposed whenever they would be beneficial to the Project or parties needs. This article discusses alternative methods by which a resolution to a construction dispute concerning costs or delays can be found in ways not necessarily proscribed by the contracts dispute resolution provisions.

Contracts Do Not Predict Every Situation

As an initial point, by no means is this article suggesting that the contract should be ignored or disregarded. Indeed, the contract provisions should be the embodiment of the good faith negotiations of the parties, often hard-won through sophisticated bargaining. But this does not mean that one size fits all, and the individual situation and claims should be considered when an actual dispute must be managed.

This can be particularly true when circumstances change between the parties, or when the companies develop a business relationship outside of the one specific project. To be sure, the contracts dispute resolution provisions establish the original framework by which the parties are to resolve disputes arising from construction of that individual project. But the realities can change when those companies subsequently enter into additional contracts regarding multiple projects, or agree to an Operation and Maintenance Agreement that binds them to each other at the same site for multiple years following completion. Suddenly, the prospect of filing for arbitration over the one construction dispute can become a challenging or unacceptable option. Indeed, preserving the relationship and maintaining peace may prove more valuable than escalating a dispute to a jury or an independent panel. And with arbitration or litigation seen as a last-ditch option, the parties may do well to think beyond the contracts instructions in order to get the dispute resolved.

Conditions Precedent Can Be Mutually Waived or Changed

In many ways, a contracts dispute resolution provision can be seen as the designation of the ultimate deciderarbitrator, judge, or juryand a series of conditions precedent that must be followed before reaching the final stage. These conditions serve various purposes, like promoting party communication in an attempt to avoid costly litigation, or ensuring notifications are being effected internally at appropriate levels of management. These interim steps can include formal notice, a mediation or other non-binding proceeding, various waiting periods, and/or a meeting between management personnel. When a particular dispute reaches impasse, however, these actions may not always serve their intended purpose. In such scenarios, the contract provisions do not always need to be strictly adhered to, but instead should be evaluated for their perceived effectiveness under the circumstances. When it serves both parties or the Project to take different action, consider seeking a mutual agreement to waive or adjust certain of these conditions.

Take waiting periods. It is not uncommon for a contract to mandate that arbitration cannot be filed until a certain number of days after a formal notice letter is served (or other triggering event). But what if the dispute is impacting critical path activities, and a quick resolution would allow the parties to mitigate the impact or at least would provide the parties more certainty regarding the risks of a situation already affecting cost and schedule? As an initial matter, the owner may do well to instruct the contractor to continue working, or enter into a temporary agreement that maintains Project progress while the claim is addressed. But in this scenario, both parties may wish to consider waiving the required waiting period and submitting the dispute on an expedited schedule. Similarly, both sides may benefit from adding strict time limits on the selection process of nominating one arbitrator eachwho then nominate a chairpersonor even forgoing this timely process in favor of selecting a single fact-finder.

Another example is mandatory meetings between managers. Sometimes it may be patently obvious that certain disputes will not be resolved at such meetings. Perhaps the representatives designated by the contract have personality conflicts, the parties positions are extreme and irreconcilable, or the contemplated meeting would present other challenges that may actually exacerbate the situation. If the parties are entrenched in their positions, more might be at stake than a waste of time and resources: ill will can result if one party believes the other is not participating in good faith. In certain circumstances, a discussion by the designated persons about the dispute can do more harm than good.

Agreeing not to hold such a meeting is an option, although generally speaking, parties engaging in discussion before launching litigation is a good thing. If the contract requirements do not create an environment for success, they can be tweaked. Notwithstanding contractual restrictions on attendees, the parties can agree to select personnel best suited to attend, usually so long as there is someone present with decision-making authority. The presence of a mediator, expert, or third party neutral to facilitate discussions and offer opinions can be considered, regardless of whether the contract requires such a presence. And rather than meeting to discuss the merits of the disputewhich likely is encapsulated already in opinionated change documentation and argumentative claims letterscommercial settlements can be discussed instead. Indeed, such proposalsbonus milestones, additional resources, overtime, changes to the payment schedule, etc.may resolve the dispute without having to discuss, much less decide, the contentious issues, and can also benefit project progress itself. In these ways, parties can still hold the required meeting but tailor it to best position themselves for success.

Conclusion

A dispute resolution provision identifies the final arbiter of a dispute and contains other requirements meant to facilitate discussion and negotiation so that litigation can be avoided. Sometimes, however, the specific provisions will not best serve those purposes. In these situations, prudent parties will study the contracts requirements but also consider options that might more effectively resolve the particular dispute at issue, get the project back on track, and improverather than harmthe business relationship. Rather than view the various required stages as items on a checklist, parties can agree to waive or alter certain provisions and thereby adopt a procedure that may better facilitate resolution the specific dispute.

Resolving Disputes Regarding Value of the Loss through the Appraisal Process

J. Robert Keena | Hellmuth & Johnson PLLC | June 13, 2017

With an increase in storm damage events throughout the Midwest, insurers are becoming increasingly frugal when adjusting storm damage losses. In the past, disputes regarding the value of the loss typically involved disagreements on pricing. Today more aggressive practice by insurers on even the most basic hailstorm can result in complex arguments regarding scope of repair, and cost of repair coverage.

Under Minnesota law a process exists to resolve disputes regarding the value of the loss which, theoretically does not require Court involvement. This process is known as the “appraisal process.” The typical insurance appraisal provision can be found in Minnesota Statute §65A.01 et seq. or in the language of the insurance policy. Traditionally disputes regarding coverage (i.e. whether or not a loss is covered or whether or not the insured has complied with the terms of the policy) are not resolved under the appraisal process.

The appraisal process is not supposed to be complex. It is very much like an arbitration about the cost of repair. Each side (the insurer and the insured) appoint an appraiser to represent their interests. These two appraisers select a neutral umpire. If the two appraisers agree on the value, the umpire’s role is limited. If however the two appraisers do not agree on the value of the damage, the umpire acts as the tiebreaker. The insured and the insurer each pay for their own appraiser and one half of the cost of the umpire.

Appraisals can sometimes be very informal whereby the appraisers meet to discuss the value of the damage and hopefully come to an agreement. If they cannot agree they bring in an umpire to make a decision. The process can also be more formal whereby the panel hears evidence presented by the insured and the insurer regarding the value of the loss. This can sometimes involve lawyers presenting the evidence in a manner very similar to an arbitration and even involve testimony and cross-examination.

There are several trends in first-party insurance claims which should concern individuals involved in the Community Association industry. One trend is an increase in outright denials of the right to appraisal wherein insurers argue that the issue is not one of value but of scope of damage. They then argue that scope is not the same as value and therefore appraisal is not appropriate. Often insurers will argue that they do not agree that some aspect of the property is damaged and, therefore since they say there is no damage, the dispute is not about value of the loss but instead is a question of coverage. Throughout the Midwest insurers are taking this stand in an effort to limit the size of property insurance claims presumably under the theory that only a limited percentage of insureds will commence a lawsuit in order to compel the appraisal process.

Another disturbing trend that insurers are pursing more regularly is an insistence that a non-neutral umpire be appointed. Historically the two appraisers could easily select a neutral umpire and move forward. Today insurers are increasingly suggesting a non-neutral umpire to act as the tiebreaker and forcing insureds to commence a lawsuit seeking court appointment of a neutral umpire. Presumably, the insurers are hoping that the additional cost of commencing a lawsuit to petition the court to appoint an umpire will weed out some insureds who need to maximize their funds in order to repair damages. These trends are troubling for insureds in that many claims which would have been easily resolved in the past are now requiring Petitions for Appointment of Umpires or lawsuits seeking to compel appraisal.

In the past few years, there have also been more disputes regarding the scope of the appraisal panels’ role. Insurers have argued that appraisal panels cannot decide issues such as whether or not policies require them to provide matching materials for a damaged building. Insurers have also argued that causation of the damage is not a proper consideration for an appraisal panel either. Courts are generally coming down in favor of an expanded role for appraisers. They are finding that appraisers can make decisions regarding the reasonableness of product matches for materials to be installed and acknowledging that at least some limited causation analysis is needed by an appraisal panel to properly evaluate a claim.

When deciding whether a demand for appraisal is proper, there is a simple question that one must ask themselves. The question is this: Has the insurance company offered to pay an amount sufficient to repair the damage? If they have not offered a sufficient amount to repair damage but instead are simply seeking to find arguments to diminish the adjusted total, the appraisal process is likely quite ripe. The difficulty for property owners occurs when the dispute is smaller than the cost of paying for an appraiser and half of the umpire. Very often insurers are gaining the benefit of this apprehension against tacking costs upon an already diminished adjustment amount.

It is important to remember when information is presented to an appraisal panel that it should be clear, concise and descriptive. If the insurance company claims that the damage does not include damage to features on the building such as soft metal, gutters, downspouts, or window frames, photographic evidence and an opportunity to inspect the property by the appraisal panel can be an asset for the insured. It is equally important, that the insured acquires estimates which plainly include the full scale of the damage rather than the scale of the damage claimed by the insurance company.

One other extremely important and relevant insurance policy consideration in working on property damage claims is the deadline for making a legal claim. Often times people make the mistake of believing that the “right to suit” provision under an insurance policy (typically two years pursuant to Minnesota Statute §65A.01 et seq.) begins to run from the date of denial of a claim or the date a dispute arises regarding the value of the claim. It does not. That deadline runs from the date of the loss itself whether or not there has been a denial.

There are several basic steps which must be followed when a property damage claim arises. They include: 1) Immediately notifying the insurer that a loss has occurred; 2) Mitigating damages to the property by protecting any aspect of it which has been exposed to the elements; 3) Cooperating with the insurer pursuant to policy cooperation clause. (Failure to cooperate with an investigation can be a separate basis for denial of the claim); and 4) Acquiring independent estimates for damages. If these steps are followed and there is a difference between the value of the loss as purported by the insurer and the value of the loss based on the insured’s own investigation, and negotiation is unsuccessful, the next step is appraisal.

Anyone assisting an Association with an insurance claim should be aware of the limitations period and the appraisal provision contained in the policy. The appraisal provision in particular offers a neat, clean and distinct way to resolve disputes regarding the value of the loss. If the insurance company is not offering enough to fix the damage the first thing that should come to mind is the appraisal process.

Using Mediation to Save Time and Resources Spent on Disputes

Kent Scott | Babcock Scott & Babcock | June 8, 2017

Mediation is an effective alternative dispute resolution method that allows disputing parties more say in the outcome while cutting down on the time and resources spent on resolving disputes. The mediation process includes opposing parties sitting down with a neutral third party who facilitates a way for the opposing parties to reach an agreement. The agreement requires both parties to consent to the terms before the agreement is finalized. The signed agreement binds both parties and can be enforced by the courts.

 

Why Use Mediation?

 

Owners in today’s economy expect completed construction projects faster and cheaper than before. Not meeting these expectations often leads to misunderstandings and disputes that may require legal action. A drawn out legal dispute diverts resources and time away from the project while reducing the profit margin for contractors, design professionals, and owners. Mediation reduces costs and time spent on dispute resolution due to the following reasons.

 

Limited Discovery. One of the most expensive parts of a legal dispute is the discovery process where the courts require both parties to produce documents, files, or other information relevant to the dispute. In mediation both parties simply agree to exchange the relevant information used to support each side’s case.

 

Faster Results. Often both parties hope for a fast resolution to the dispute, so an agreement is typically reached faster than going through the courts. A faster agreement means a faster return to normal business routines.

 

More Efficient Legal Strategy. Mediation centers on solving the dispute and therefore the legal strategy shifts from building a case with overwhelming evidence to coming up with possible ways to resolve the dispute. Additionally mediation does not require motions and written arguments to support motions. This long process requires valuable resources spent on attorney’s fees while mediation typically requires shorter summaries of the dispute that are submitted to the mediator.

 

Privacy. Mediation is conducted privately which can help protect parties from potential embarrassment and lost business if a supplier or customer learns about a lawsuit. Disputes resolved in Court are published, potentially putting one or both parties in an un-favorable light. Before mediation begins both parties will sign a confidentiality agreement and submit it to the mediator.

 

How Successful is Mediation? The mediation success rate is roughly 80%. Even if the mediation process fails to result in an agreement, parties can still benefit from narrowing the issues in dispute or possibly reaching a partial settlement.

 

 

 

What to Expect in Mediation

 

When and Where. One of the most appealing aspects of mediation is that parties can agree to mediation at any time before a jury reaches a verdict, a judge issues a ruling, or an arbitrator declares a reward. Mediation often starts after filing a claim and some limited discovery already done. Parties should plan on either a half-day or a full day. Mediation may require more time depending on the complexity of the claim or the difficulty of reaching an agreement.

 

Dealing with the Opposing Party. Typically a brief opening statement allows for both sides to tell their side of the story with the other party and mediator present. If this creates an uncomfortable setting for one or both parties, the mediator can change the format of the meeting. The mediator should have enough information and communication at this point to make the best judgment call on how much interaction the parties need to have a successful mediation.

 

Party Participation. The parties should bring their attorneys and a very limited number of employees or persons with relevant information regarding the dispute. Usually this requires no more than two employees or witnesses for each side. Having a decision maker for each side is crucial for an efficient and binding mediation.

 

Day of Mediation. The mediator starts by setting out the ground rules and expectations for professional conduct. Then each party will direct an opening statement to the opposing decision maker that briefly describes the dispute and their ideal resolution. After opening statements the parties separate and the mediator caucuses with both sides. Private caucuses allow the mediator to gather information, negotiate, and find consensus. The mediator will discuss strengths and weaknesses of positions and if needed help parties re-evaluate their position.

 

Settlement, Recess or Termination. Once a settlement is reached, the main terms of the agreement are summarized and signed before either party leaves mediation. If mediation fails to produce an agreement, the mediator can help determine if another meeting will potentially achieve an agreement or if the mediation should be terminated back to litigation.

 

Successful Mediation Tips

 

  • Decision making parties and attorneys who are very familiar with all aspects of the dispute.
  • Strong commitment from both parties to resolving the dispute. A party who is half-interested in resolving the dispute can become too entrenched in their position to compromise.
  • Choosing a reputable and skilled mediator.
  • Parties refraining from getting firmly entrenched expectations or demands.
  • Willingness to see big picture solutions from compromises.
  • Honest and good faith participation from both parties.

 

Conclusion

 

Mediation will cut down the necessary resources spent on disputes while increasing the chances of moving on from a dispute with a business relationship intact. The mediation process allows for a private setting and direct input by the parties in the final outcome of an agreement. Finding a resolution through mediation instead of litigation will improve the speed and efficiency in solving disputes.

 

 

Kent B. Scott is a Shareholder in the construction law firm, Babcock Scott & Babcock PC in Salt Lake City, Utah. He currently serves on several mediation panels and mediates commercial and construction disputes.

Mediation: Investing in the Solution

Kent B. Scott | Babcock, Scott & Babcock

Mediation is an effective alternative dispute resolution method that empowers the parties to resolve their dispute while preserving their resources in terms of time, money and effort.  Mediation is a dispute resolution process where the opposing parties meet with a neutral third party to find a better option to a litigated result. Any resolution requires both parties to consent to the terms thereof before the agreement is finalized. The signed agreement binds both parties and can be enforced by the courts.

Why Use Mediation?

Owners in today’s economy expect completed construction projects faster and cheaper than before. These challenges often lead to misunderstandings and disputes that may require legal action. A drawn out legal dispute diverts resources and time away from the project while reducing the profit margin for contractors, design professionals, and owners. Mediation is designed and is intended to reduce costs and time spent on the dispute resolution process. This article will examine and discuss the mediation process and its ability to efficiently and effectively resolve disputes.

Limited Discovery. One of the most expensive parts of a legal dispute is the discovery process where the courts require both parties to produce documents, files, or other information relevant to the dispute. The discovery process may require considerable time and effort by both parties in a dispute. In mediation both parties simply agree to exchange the relevant information used to support each side’s case.

Faster Results. There are many rules and procedures involved with the legal system that require following a set time frame and court calendar. Mediation allows the two parties to meet on their own schedule at an agreed upon time and place that also fits the mediator’s schedule. Often both parties hope for a fast resolution to the dispute, so an agreement is typically reached faster than going through the courts. A faster agreement means a faster return to normal business routines.

More Efficient Legal Strategy. Mediation requires the disputing parties to focus on solving the dispute. The legal strategy shifts from building a case with supporting facts and legal authorities to focusing on a resolution that is a better option to a litigated result. Mediation does not require the preparation and filing of motions and supporting materials. The written motion process requires valuable resources spent on attorney’s fees while mediation typically requires shorter and more focused summaries of the dispute that are submitted to the mediator. Successful mediation includes attorneys and advocates, but the amount of time and effort needed by attorneys in the dispute can be significantly reduced.

Confidentiality & Privacy. Mediation is conducted privately which can help protect parties from potential embarrassment and lost business if a supplier or customer learns about a lawsuit. Disputes resolved in Court are published, potentially putting one or both parties in an un-favorable light. Before mediation begins both parties will sign a confidentiality agreement and submit it to the mediator. If the mediation is conducted after a legal dispute has been filed, the judge and jury are not entitled to hear any information exchanged during the mediation. What is done in mediation stays in mediation?

Preserve Business Relationships. Many parties in mediation find a way to move on from the dispute and return to a business relationship with each other. Resolution through mediation will help to avoid a long and drawn out adversarial litigation battle that will often hurt the business relationship past the point of future cooperation.

Mediation retains the power of choice with the parties. It  is the only dispute resolution method that, through the facilitation of the mediator, allows the parties to choose the final agreement. The options available to resolve a dispute are far more numerous than legally define remedies which a court is restricted to use. The mediation success rate is roughly 80%. Even if the mediation process fails to result in an agreement, parties can still benefit from narrowing the issues in dispute or possibly reaching a partial settlement.

Contract Documents Requiring Mediation.  The parties may consent to conduct a mediation of their dispute in advance by including a mediation clause in their contract. A number of construction project contracts such as the AIA and Consensus Docs forms require mediation if there is a dispute. The parties may be better off if they can agree on the timing of mediation before the legal system gets too involved. If the contract requires arbitration or litigation, mediation is still an option if both parties agree to the timing, location, and mediator.

What to Expect in Mediation

When and Where. One of the most appealing aspects of mediation is that parties can agree to mediation at any time before a jury reaches a verdict, a judge issues a ruling, or an arbitrator declares a reward. Mediation often starts after a claim has been filed and some limited discovery has taken place. However, mediation can be conducted before any legal action is taken. Most design and construction contract contain mediation clauses requiring the mediation of any dispute arising under or relating to the contract. The contract may reference an upper tier prime contract and incorporate the terms its terms that may include a mediation provision.  The parties should plan on either a half-day or a full day. Mediation may require more time depending on the complexity of the claim or the difficulty of reaching an agreement.

Dealing with the Opposing Party. Typically a brief opening statement allows for both sides to tell their side of the story with the other party and mediator present. If this creates an uncomfortable setting for one or both parties, the mediator can change the format of the meeting and meet privately in caucuses with each of the parties. The mediator should have enough information and communication at this point to, along with consultation with counsel, make the best judgment call on how much interaction the parties should have in order to accomplish a successful mediation. To increase the chances of a smooth mediation proceeding, both parties should bring any concerns to the attention of the mediator about interacting with the opposing party.

Party Participation. The parties should bring their attorneys and a very limited number of employees or persons with relevant information regarding the dispute. Usually this requires no more than two employees or witnesses for each side. Scientific and technical disputes sometimes require an expert, but this should be the exception and not the rule.  In any event, the most important participants are the decision makers from each side. A decision maker is anyone who has authority to agree to mediation terms. There may be some situations where there are multiple decision makers for each side. Having a decision maker for each side is crucial for an efficient and binding mediation.

Day of Mediation. There is no hard and fast rule, but a typical mediation starts with an opening joint session followed by private caucuses with each party until either an agreement is reached or the mediation is suspended or terminated. The mediator starts by setting out the ground rules and expectations for civil and professional conduct. Each party will direct an opening statement to the opposing decision maker that briefly describes the dispute and their ideal resolution terms. After opening statements the parties separate and the mediator caucuses with both sides. Private caucuses allow the mediator to gather information in a comfortable and confidential setting. Candid and complete information exchange is a critical component in reaching a settlement.  The mediator will discuss strengths and weaknesses of positions, and if needed, will help parties re-evaluate their position. During the caucuses the mediator will keep in mind the desired outcome for both parties while working towards a solution.

Settlement, Recess or Termination. Once a settlement is reached, the main terms of the agreement are summarized and signed before either party leaves mediation. This agreement is enforceable by any court of appropriate jurisdiction. If mediation fails to produce an agreement, the mediator can help determine if another meeting will potentially achieve an agreement or if the mediation should be terminated and the dispute sent  back to litigation.

The Recipe for a Successful Mediation

  • The attendance of a decision maker.
  • A strong commitment from both parties to resolve the dispute.
  • Choosing a reputable and skilled mediator.
  • Willing parties who keep an open mind.
  • Hard work and willingness find a better option to a litigate result

Conclusion

Mediation will cut down the necessary resources spent on disputes while increasing the chances of moving on from a dispute with a business relationship intact. The mediation process allows for a private setting and direct input by the parties in the final outcome of an agreement. Mediation, which provides the disputing parties with the opportunity to find a resolution that represents a better alternative to a litigated result, will allow the parties to invest in the solution rather than litigate through the problem.  Mediation empowers the parties to be responsible for the resolution they have crafted rather than having a litigated resolution imposed upon them by a judge or jury.  The mediation process, in short, provides disputing parties with a better option to resolve their differences. Happy mediating to all!

Before You Litigate Your Construction Case, Test It!

Joe Imperiale | The Dispute Resolver | March 2, 2017

Construction litigation is expensive. Why? Because construction cases usually involve complex technical issues with lots of documents. Knowing that, it only makes sense for a party facing litigation or arbitration to try to settle the case by negotiation and mediation. If that is not possible, that party should thoroughly and candidly evaluate the prospects of achieving a good result at trial or in arbitration.

Even the most competent and experienced construction lawyers have great difficulty putting their biases aside when trying to determine how an independent and impartial decision-maker would decide the case. So, assuming that settlement is not likely, how does a party go about trying to assess the prospects of winning or losing—before going to trial?

 

Neutral Analysis
Neutral Analysis refers to a group of ADR techniques, including pre-file evaluations, brief-based case evaluations, second opinions and mock exercises, which help counsel assess their likelihood of success or failure before walking into a courtroom or arbitral tribunal.
Attorneys and their clients may have many questions pre-filing: which of your claims are likely to be successful and which are not? How will the trier of fact likely react to your fact witnesses and experts? Would a dispositive motion likely be successful? What are the chances that the construction contract limitation of liability or notice provisions will be strictly enforced?
Pre-File/Brief-based Case Evaluations
Putting these questions to an independent party who has similar expertise and experience as the trier of fact can be immensely useful to a party contemplating suit. The evaluator can be engaged on a number of levels:  she may review the complaint pre-filing and act as a sounding board to help develop counsel’s theory of the case; she might also helpreassess settlement options, or manage client expectations about the likelihood of success.
Mock Arbitration
Similarly, a mock arbitration involves presenting a summary of a party’s case to one or more independent persons who have similar expertise and experience as do the actual arbitrators. The key difference is that this can be done before going to the actual hearing. The mock arbitrator(s) will hear the case presentation, which includes a summary of the opposing party’s positions as well, and offer their candid views on a confidential basis of how your case strategy would appear to an experienced, neutral third party.
If the case relies on documents, which documents are likely to be critical to the outcome? Having critical and honest feedback on issues like these—from persons who have no stake in the outcome— will allow you to adjust your case presentation strategy and tactics before it’s too late. Or, perhaps, after the mock arbitration, you may decide to settle on less favorable terms or even to abandon the case.
Perhaps the most important aspect of any mock is that the opposing party’s positions and arguments are presented credibly and persuasively, and this is typically done by having another lawyer in the appointing party’s law firm make that presentation. The standard practice is that each side’s position will be presented in the form of a general background statement—much like an opening statement in a trial—perhaps followed by presentations by expert witnesses, and with the use of PowerPoint demonstrations of documentary evidence. The typical case presentation will take one day or less, but in some complex cases, mock arbitration presentations can last several days.
Confidentiality
Of course, it is critical that the neutral evaluation process be kept strictly confidential. Therefore, an agreement should be made with the neutral that any and all confidential documents and other information that they receive, or any comments or advice given during the course of the evaluation, will be maintained in strict confidence with the appointing party.
Summary
Certainly, a mock exercise will add to the case preparation costs, but the expense of a mock is usually a small fraction of the total cost of preparing for and putting on the actual case. What is more sobering is the prospect of expending the considerable time and cost of going through the actual matter with a weak or less-than-persuasive case presentation. Because the cost of mocks and other neutral evaluations can be managed to fit the party’s needs, using them will usually be cost-effective. It is almost always the case that a party will make productive adjustments in its case based on feedback from the evaluation and will agree that the overall benefit of the exercise was worth the additional cost.