Minnesota Lawyer
Becker, a partner at Fabyanske, Westra, Hart & Thomson, represents owners, design professionals, contractors and subcontractors by doing “transactional work at the front end” to make things clear going in.
He follows with an early mediation process, seeking to resolve issues without a court proceeding. This approach has been successful and attracted clients all around the country. The shorter process may cost his clients less, but it hasn’t reduced his workload.
Resolution through mediation can be more difficult than a trial because one of the parties’ goals is to maintain their business relationship, Becker said. A mediation can take more homework than a trial and “there’s an art to mediation advocacy,” he said.
The biggest impediment to mediation arises when parties perceive they have too little information from the other side, Becker said. The parties need to build trust and jointly buy in to the process. “Everybody needs to understand the value of the process and that it may take multiple sessions,” he said.
Everyone should also understand the expense in attorney fees that can be saved, he further noted. Becker’s next step reflects his background as a structural engineer. He prepares a spreadsheet that weighs the risks, the potential damages and the costs so that he can predict a reasonable settlement. “Clients like it because they make decisions based on numbers,” he said.
Then the clients and Becker have flexibility in developing a strategic plan and, if necessary, the expert testimony.
Becker’s clients, like most in the industry, are concerned about the material unavailability and cost escalation that has resulted from the pandemic. He’s found that the best way to mitigate may be through a change in design and the use of change orders. “Design professionals can add to the process,” he said.
The beginning of the pandemic led to uncertainty about whether construction could continue and if the force majeure clauses in the contracts would protect builders. But Gov. Tim Walz declared construction to be an essential business, and that was key to its continued stability, Becker said.
