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

AuthorBy James Duffy O'Connor
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
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

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