Construction Disputes – How to Talk Instead of Getting to Court?

On June 5, 2025, the Mediation Center at the National Chamber of Commerce in Warsaw organized the conference “Construction Disputes – Negotiations, Mediation, Court”.Hoogells had the pleasure of attending the event – Łukasz Kotarba listened in on all three panels: negotiations, mediation, and disputes.

One key takeaway that stayed with us: What matters most are: a competent supervisor (investor/contractor), a good legal representative, a good mediator, a good arbitrator, and a good judge.  

A truism, a cliché, or a real challenge?

If the above individuals are properly prepared and bring quality and decisiveness to their roles, then the chances of a smooth construction process and dispute resolution increase – regardless of whether it ends up in negotiations, mediation, or court.

Another observation: while public procurers once used to say “you knew what you were getting into”, now it’s more often: “the work must be paid for”. Fortunately, this isn’t just a joke, but a reasonable voice from the audience.

Other important points discussed during the panels:

 Negotiations

• Negotiations are a tough process. Negotiations are not a game of chess.
• Negotiations are unpredictable, whereas in court you know what you’re dealing with – what we disagree with. Courts, legal counsels, and legal provisions can still surprise at any stage – and that thrill is what lets us pursue litigation law with passion.    
• Reciprocity is the essence of negotiations. Conditional clauses, conditional concessions – you don’t always have to approach negotiations in a formulaic way, like in the civil code.

Mediation

• Should a mediator be knowledgeable in construction matters, or is a general specialization in dispute resolution enough? We believe that generality may not be sufficient.
• The role of individual meetings – are joint mediation sessions enough? In our view, individual meetings are just as important, and can be helpful at every stage of mediation.
• Desired traits in mediation and among participants – attentiveness, flexibility, agility, creativity.
• Plus for the mediator – they view the dispute from the outside. Such an external perspective can also help in negotiations – for example, by involving an additional lawyer who wasn’t previously immersed in the facts.

 Dispute

• When a case ends up in court, is it the end of the dispute strategy? Or does the strategy simply shift?
• Is court a place to recover money or only to minimize losses?
• The shorter the litigation, the better – there are fewer emotions involved.
• In the context of arbitration, it’s worth considering modifications to arbitration court rules, including setting caps on legal counsel fees.
• Disputes arise from human error, and in construction – maybe we need a bit of affection. yIs that even possible?    

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