To minimize the potential for simple communication failures to result in protracted and expensive litigation on construction projects, all of the major industry construction contract forms include communicative processes that must occur before a claimant files suit or requests arbitration. One goal of the process is to reduce the potential for inefficient and unnecessary litigation by resolving claims as they arise on the job site. Engaging in open and early communication about a particular issue on a construction project, however, is not without risk. Specifically, statements made during the open communication process before facts have been fully developed could prejudice a party's position during litigation if the contractually required pre-suit process fails. Although many state and federal courts have adopted rules of evidence protecting statements made during the course of settlement negotiations from introduction at trial, those rules of protection also have their limitations. This article examines the current status of the evidentiary rules with particular emphasis on the federal evidentiary standard relating to settlement negotiations and the relationship between that standard and the industry form contracts.
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