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CHAPTER 11 Mitigation, recovery and acceleration

Delay and Disruption in Construction Contracts

Page 457 11 Mitigation, recovery and acceleration Introduction “Nothing bothers the trier-of-fact more than an otherwise valid damages proof which has been inflated by the failure of the entitled party to mitigate the event of the damage. In most construction situations, damages can be mitigated. Therefore, mitigation is a third major proof role for the construction process/damages expert. Was there demonstrable effort? Actual success of mitigation is not essential, but can reduce necessary additional proof of mitigation effort. Generally a recognition of the need to mitigate and demonstrable follow through can be sufficient. Failure to see reasonably obvious mitigation options, even with other effort, may be held the responsible party. The expert can demonstrate such effort from the factual evidence available….” 1

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