Early Mediation – A Low-Risk High-Reward Proposition
Early mediation is a mechanism that can provide a path to resolution. This forum allows
the parties to present their issues to a knowledgeable intermediary who will work with all
sides to facilitate a reasonable outcome. Compromise is the key to successful mediation.
Early dispositions in litigation are rare, so mediation is designed to facilitate a resolution
where no party is the absolute winner or loser. Such an outcome may be emotionally
unappealing, particularly where one feels strongly about a claim or defense, but early
efforts to bring a dispute to a conclusion can often result in significant savings.
The most obvious way to avoid risk is to not perform services. Don’t accept a bad contract. In
reality, however, design professionals who want to be retained for assignments are often only too
anxious to sign contracts, even if they contain onerous terms and conditions. Because accepting
contracts and performing services are critical to a design professional’s livelihood, the key is to
recognize and avoid those risks that are unacceptable.
Terms and conditions that contain onerous risks, especially risks that are uninsurable under a
professional liability policy should be identified before the contract is signed and revised so as to
be acceptable and insurable to the greatest extent possible. If it isn’t possible to negotiate a
reasonable contract, the safe course of action may very well be to decline the contract and the
To accept uninsurable risks is to bet the firm on the assumption that the risks that arise will
minimal or will not materialize. The client who insists on shifting owner and contractor risks to
the design firm is often the client who is most likely to have unreasonable expectations. That same
client may also be quickest to take you to court when things don’t go as hoped. In such
circumstances, the best decision you can make in managing your firm might be to reject a bad
To read more about Early Mediation, please visit the Risk Management section of our website HERE