In the context of mediation, if there is one word that counsel and mediators dread the most, it is “impasse.” Consider the following scenario: In one room, there is a contractor making allegations of delay, disruption and/or acceleration based on differing site conditions, changed character of a project or constructive changes. In separate rooms, there are a public entity owner and an insurance carrier for a design professional earnestly contending that while the contractor experienced increased costs, such costs were due to an underbid or self-inflicted inefficiencies. Moreover, the carrier for the design professional is asserting that there is no breach of the standard of care. The parties are millions of dollars apart and are convinced of the righteousness of their respective positions.

Often in this scenario, counsel for the public entity and/or the insurance carrier are put in a position of having to report to a third-party government agency, legislative body or internal “chain of command.” Counsel typically arrive at mediation with a range of settlement authority, based on an initial review of the case.