But naturally costing less is better, and that’s one reason why early dispute resolution is important. Mark Bloomquist has an insurance defense practice at Meagher + Geer, which fits right in with construction claims, including those against architects and engineers — because those generally involve insurance.
“We try to figure out, as fast as possible, what everybody needs and wants,” said Bloomquist, but on a more efficient time schedule than litigation. “We can condense to a few months rather than two years.”
There are a couple of caveats to the principle of early mediation. One is that people are entitled to their day in court, and the other is that it requires the exchange of information, even if not formal discovery. But a judge may require those seeking a day in court to mediate first.
“People want early mediation but we often need expert disclosure to have mediation,” Bloomquist said. But sometimes an early mediation is a waste of time, and it may be helpful to involve a mediator early to facilitate the exchange of information. There is a high level of trust among members of the Minnesota construction bar, said Bloomquist, and that makes a huge difference. “More often than not, people are willing to come forward,” he said. “We all know that not cooperating is not in anyone’s best interests.”
The focus of the dispute usually should be on how to fix the problem, not who caused it. “You’ll rarely come to an agreement about who’s at fault,” Bloomquist said. “The more important dispute usually is how much money it will cost to fix it.”
The damages are loss of market value or cost to repair, not a litigant’s personal view of the value. That discrepancy is often the reason cases go to trial, Bloomquist said.
It is also important that both parties understand the insurance issues and the duty to indemnify, Bloomquist added. Attorneys and clients should review the insurance early and determine if there is coverage, Bloomquist said. “You don’t want to get caught without coverage.”