Construction, Dispute Resolution

Beyond the Courtroom: Using strategic negotiation to resolve high-value TCC disputes

Written by: Samuel Okoronkwo

Published on: June 2, 2026

When an adjudicator’s decision lands, attention immediately turns to enforcement. Who pays, how much is due, and how quickly the money must move usually become the only issues anyone wants to discuss.

On larger construction projects, particularly disputes involving claims in excess of £1 million, communication between the parties can deteriorate quickly once adjudication concludes, or enforcement proceedings in the Technology and Construction Court (TCC) are threatened.

One side relies on the adjudicator’s decision and prepares for enforcement. The other begins exploring every possible ground to resist payment.

From a commercial perspective, that stalemate is rarely productive.

The TCC is an efficient and highly experienced forum for resolving construction disputes, but litigation should not automatically be treated as the next inevitable step.

In practice, a favourable adjudication decision is often most effective when used as leverage within a wider commercial negotiation strategy, rather than simply as a judgment to enforce at all costs.

Resolving disputes at this stage requires more than legal analysis alone; it requires a clear understanding of commercial pressure, project risk, cash flow, and the realities of ongoing delivery on site.

The Commercial Dynamics After Adjudication

A strong legal position does not always produce the best commercial outcome on its own.

The period immediately following adjudication is often the point at which meaningful settlement discussions become possible. This is particularly true where enforcement costs, project delays, and ongoing contractual relationships are all in play.

Several strategic mechanisms can assist in reaching a commercially workable resolution during this phase:

Without Prejudice Negotiations

Carefully drafted without prejudice correspondence allows parties to explore settlement proposals openly while preserving their legal position should negotiations fail.

Used properly, these discussions can create space for practical solutions that would never emerge through formal pleadings alone.

In construction disputes, where parties may still need to complete a project together, that flexibility is invaluable.

Calderbank Offers and Costs Pressure

Although Part 36 offers do not operate in the same way in adjudication enforcement proceedings, Calderbank-style offers made on a “without prejudice save as to costs” basis can still create significant commercial pressure.

Where a party unreasonably refuses a sensible proposal and proceeds unsuccessfully through enforcement litigation, the court may take that conduct into account when considering costs.

That risk often becomes an important factor in settlement discussions when legal costs are escalating alongside project pressures.

Structuring a Practical Settlement

Effective settlements in construction disputes are rarely limited to a single payment figure.

In many cases, the most successful resolutions are structured around the operational realities of the project itself. That may involve staged payments linked to future milestones, revised retention arrangements, extensions of time, or agreements dealing with ongoing risk allocation between the parties.

The objective is not simply to conclude the dispute on paper, but to allow the project to move forward without further disruption or uncertainty.

Aligning Legal Precision with Site Reality

My background in quantity surveying, project management, and contract administration has consistently reinforced one point: legal outcomes only matter if they work commercially and operationally on the ground.

A technical court victory that damages the supply chain, delays completion, or creates further disputes is rarely a satisfactory outcome for either developers or contractors.

Many construction professionals remain unaware that they can instruct a specialist construction barrister directly under the Public Access scheme, completely bypassing the need to go through a solicitor first.

Involving specialist counsel early during the enforcement stage can help parties de-escalate disputes, assess litigation risk realistically, and move negotiations towards a commercially sensible resolution before costs and delays escalate further.

In construction, time pressure and financial pressure are closely connected. Taking control of the dispute narrative early, particularly after adjudication, is the most effective way to protect both the project and the commercial position behind it.

If this is something you are currently managing, feel free to get in touch.