Construction projects are complex by nature: they bring together multiple stakeholders, evolving technical requirements, demanding schedules and significant financial commitments. In this environment, disagreements are sometimes inevitable. The real challenge is not only how to avoid them, but also how to resolve them in a way that protects project delivery and preserves value for all parties.
For decades, litigation has been the default response. Yet lengthy court or arbitral proceedings often consume considerable time, resources and management attention. By the time a dispute is adjudicated, project delivery may have been delayed or even jeopardized, relationships may have deteriorated and opportunities for a practical resolution may have long disappeared.
Having delivered major infrastructure, building and PPP projects across diverse jurisdictions, BESIX has seen first-hand that disputes seldom emerge overnight. They are usually the result of unresolved issues that remain unaddressed for too long.
In this article, Patrick Baeten, Secretary General of BESIX Group, shares his perspective on why mediation offers a more effective path for many construction disputes.
Keeping control of the outcome
Unlike litigation or arbitration, mediation allows the parties themselves to remain in control. Mediators do not impose a decision. Instead, they facilitate a structured dialogue that helps parties identify common ground and reach a mutually acceptable solution.
This distinction is particularly important in construction, where disputes are rarely limited to purely legal questions. Delays and disruptions, design changes, legal or regulatory evolutions, financial issues and stakeholder expectations are often closely intertwined. A negotiated solution can address these broader realities in ways that a court ruling cannot.
Mediation shifts the focus from individually winning an argument to jointly solving a shared problem, summarizes Patrick Baeten.
Dispute resolution is project management!
The industry's biggest dispute-resolution mistake is not going to court. It is waiting too long before addressing the disagreement, or postponing that courageous discussion. In many projects, concerns are postponed until completion in an effort to preserve relationships or avoid disrupting progress.
Disputes should not be delegated to lawyers at the end of a project. They should be managed as an integral part of project governance from day one, insists Patrick Baeten.
This is why BESIX advocates considering mediation earlier in the dispute cycle. When project teams are still mobilised, facts remain fresh and stakeholders remain engaged, there is often greater scope to reach a practical solution. Early intervention can prevent a punctual disagreement from becoming a years-long legal battle and /or a very delayed project.
Protecting relationships while protecting value
Construction is fundamentally a people business. Even when disputes arise, parties often need to continue working together throughout the project and may collaborate again in the future.
Traditional litigation tends to reinforce adversarial positions. Mediation, by contrast, encourages dialogue and cooperation. It creates a trust-based environment in which parties can openly yet confidentially discuss concerns, better understand each other's interests and explore constructive solutions. But mediation is about more than preserving relationships. It is also about protecting value.
“Every year spent in dispute resolution ties up capital, and diverts focus from project execution, both for the employer and the contractor. Every hour spent preparing for litigation is an hour not spent delivering value to clients. Mediation allows companies like ours to redirect energy from disputes back to project execution," clarifies Patrick Baeten.
Not a shortcut
Mediation is not a universal solution though. It requires thorough preparation, robust documentation, empowered decision-makers and a willingness to engage constructively. Project teams must understand the technical, commercial and legal dimensions of the dispute, while participants must have the authority to make decisions.
Nor does mediation guarantee agreement. Some disputes will ultimately require litigation or arbitration. Even so, the process often delivers value. It can clarify the issues at stake, narrow areas of disagreement and provide greater insight into the risks faced by all parties.
“As a result, mediation offers significant potential upside while carrying relatively limited downside,” adds Patrick Baeten.
A more mature approach to dispute resolution
The construction sector is under increasing pressure to deliver faster, more sustainably and with greater certainty, while margins remain thin. Lengthy disputes serve neither clients nor contractors. They divert attention away from timely project delivery, increase costs and consume management time. For this reason, BESIX believes mediation should no longer be viewed as an exceptional measure. It should be considered a normal part of responsible project governance.
As construction projects become more interconnected and risk profiles more complex, early dispute-resolution mechanisms will become a competitive advantage rather than an administrative formality for the contractor and the asset owner. Construction will always involve complexity.
The industry's challenge is not to eliminate value-adding conflict, but to become better at resolving conflicts before they undermine the value we create together. The best projects are not the ones without disputes. They are the ones that address and solve disputes early on, constructively, and in parallel with effective completion, concludes Patrick Baeten.
