International Construction Law Review
MEDIATING PUBLIC SECTOR CONSTRUCTION DISPUTES IN THE UNITED STATES: “SQUARE CORNERS”, “NO FREE LUNCH”, AND PRINCIPLES OF FAIRNESS
PHILIP L BRUNER1
International Arbitrator and Mediator
Since the early days of the United States, contractors who contracted with the government learned—all too frequently the hard way—that those who seek compensation from the public treasury “must turn square corners when they deal with the government”.2 These “square corners” pervade all levels of public contracting in the United States, and are found in mandated requirements and conditions imposed at federal, state and local levels. Many such “square corners” impact the success of mediations in which contractors and public sector owners pursue settlement of their respective contract claims.3 Achieving mediation settlements of claims and disputes between private contractors and public sector owners requires appreciation of many issues: those ordinarily addressed in mediation, and in addition those raised by government “square corners”.
I. The “normal” problems affecting mediation of construction claims and disputes that arise on both public and private projects
Achieving mediation settlements of claims and disputes between any disputants arising out of the design and construction process is difficult enough, given the technical and legal complexities of many such claims and disputes.4 Such complexities arise out of:
1 Philip L Bruner is an international arbitrator and mediator. He is head of the Panel of Neutrals of the Global Engineering and Construction Group of JAMS (www.jamsadr.com) and JAMS International (www.jamsinternational.com); Overseas Member of the UK Society of Construction Arbitrators; past President of The American College of Construction Lawyers; and, co-author with Patrick J O’Connor, Jr. of Bruner and O’Connor on Construction Law.
2 Rock Island A & L R Co v. US, 254 US 141,143 (1920): “Men must turn square corners when they deal with the government. If [the government or the law attach] even purely formal conditions to its consent to [assume contractual liability], those conditions must be complied with. Lex non praecipit inutilia (Co Lit 127b) expresses rather an ideal than an accomplished fact.”
3 See generally, Bruner and O’Connor on Construction Law (2002 updated 2012) (hereafter Bruner and O’Connor); Cibinic, Nash and Nagle, Administration of Government Contracts (4th ed., 2006).
4 For a broad discussion of the evolution of the use of ADR by public and private construction industry participants in the United States, see Philip L Bruner, “Rapid Resolution ADR” (2011). 31 The Construction Lawyer 6 (Spring). This article was awarded the 2011 Norman Royce Prize by Britain’s Society of Construction Arbitrators.
The International Construction Law Review [2013
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