Uncertainty, Doubt, and Rules of Unlearning in the Mediation of Construction Disputes

• Author: By James Duffy O'Connor
• Pages: 6-10

THE CONSTRUCTION LAWYER6Spring 2020

James Duffy O’Connor

Published in The Construction Lawyer, Volume 40, Number 2, Spring 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Uncertainty, Doubt, and Rules of Unlearning in the

Mediation of Construction Disputes

By James Duffy O’Connor

THE UNCERTAINTY PRINCIPLE

Uncertainty pervades every

construction dispute. There

is no such thing as a “sure

bet” in any litigated mat-

ter. Any case can be won

or lost based on facts and

circumstances both within

and outside of the control

of the litigants. Indeed, the

same case can be won and

lost multiple times, such

that many lawyers describe

their view of the “likelihood

of success on the merits” in terms of percentages: e.g.,

“eight times out of ten I ought to win this case,” which

is intended to communicate to the client an “80 percent”

chance of winning. And, too many times, the opposing

counsel may advise his or her client using the same phrase.

There is no escaping the fact that every construction dis-

pute is a gamble. As a consequence, the biases that the

litigants bring to bear on the mental processes of predic-

tion, judgments, and decision making inevitably inuence

the outcome of a construction mediation. This article

addresses the fundamental function of uncertainty in

the parties’ competing decision-making processes and

proposes a set of rules intended to undo the biases that

complicate the nding of a joint resolution of construc-

tion disputes.

Uncertainty and Doubt

Uncertainty is simply a natural state of affairs, and doubt

is a tool that helps us voyage carefully through it. There

are many other tools we use every day to navigate spheres

of uncertainty. Most of them we consider essential to

decision making. But doubt is the tool we instinctively

resist. This article emphasizes the importance of doubt

in decision making. That tool can be the most important

in the box because it instructs us how to safely use all the

others, especially those that we feel we have mastered.

Doubt helps us rethink how we make decisions under

circumstances of uncertainty. Doubt is especially help-

ful in discerning biases in our thinking that can muddle

our decision making. In this paper, doubt is the captain

in a journey of unlearning, and the rst rule of unlearn-

ing is to embrace the notion that there is no certainty in

the universe of construction disputes.

The Uncertainty Principle is a good place to start the

process of embracing uncertainty and the power of doubt.

The history of science at the beginning of the twentieth

century was all about physics. Ernest Rutherford, a hero

of the atomic age, famously remarked, “All science is

either physics or stamp collecting.”1 Physicists at this time

were steeped in the Newtonian view of the Universe, and

only coming to grips with the idea that Time and Space

were equivalents, and similarly inuenced by forces such

as gravity. But even Einstein, who single-handedly turned

the whole study of physics on its head with his theories

of Relativity, was stuck on the idea that science can “cer-

tainly” fathom and measure the physical Universe. The

alternative was unthinkable.2

But even that need for certainty was about to change.

Rutherford and other like-minded physicists of his age

were especially blessed by the liberation of brilliance from

“old-thinking.” The physicists of the atomic age were

engaged in an entirely new kind of thinking, where open-

mindedness, novelty, daring, and even humor opened the

door to quantum theory, quantum mechanics, and the

impracticability of prediction and precise measurement

in a random nuclear universe. At the heart of quantum

mechanics rests the belief that uncertainty is a normal

state of affairs, so get used to it.

Niels Bohr, a fellow scientist working with Rutherford,

was obsessed with determining the atom’s structure. Of

course, the thing is too small to observe, so he sought to

determine its structure by observing how it behaved when

he taunted it. He followed Rutherford’s thinking that elec-

trons somehow traveled around a nucleus of protons and

neutrons, but what explained why electrons didn’t simply

fall into the atom’s dense nucleus? He posited the idea

that they could only occupy certain well-dened orbits,

so that an electron moving between orbits would disap-

pear from one and appear in another instantaneously

without traveling through the space between. This behav-

ior gave the eld of study its name and became known

as the “quantum leap.”3

European physicists were fascinated with the weirdness

of the electron. Sometimes it behaved like a particle, and

sometimes it behaved like a wave. They lined up on either

side of the issue, all rejecting the idea that an electron

James Duffy O’Connor is the principal of O’C ADR,

LLC; a former chair of the ABA Forum on Construction

Law; and a fellow of the American College of Construction

Lawyers.