After last week’s quick detour to discuss Kevin Underhill’s great book, we’re back to discuss more “serious” topics. Namely, how to move forward relating to your construction disputes in 2014.
As anyone that regularly reads Construction Law Musings knows, I am a Virginia Supreme Court certified mediator and an advocate of mediation as a great way to resolve construction disputes in an efficient manner. While much of my practice is representing construction industry professionals during the dispute resolution process (whether through litigation, arbitration or otherwise), I try and keep my focus on risk management and the efficient resolution of the payment and performance issues that are almost inevitable in the Murphy’s Law controlled world of construction.
While much has been written about the negative perception of construction attorneys, many of us at least try to be a partner to our clients and keep them out of trouble if at all possible. One way to do help out is to assist construction subcontractors, general contractors and suppliers to take a business approach to dealing with payment issues.
One great way to do this is through mediation (whether formal or informal). While some construction contracts require mediation on the front end (something that often leads to more of a “check the box” mentality than to resolution), many do not. However, this does not mean that you should not consider mediation in almost every case. When entered into voluntarily and with the right attitude, I have found that mediation affords the parties the ability to resolve their issues in more of a business like fashion.
Why? Because often the underlying dispute has as much to do with the sorts of interpersonal and emotional issues that are not likely to come out in court as they do with the money itself. Also, mediation allows the parties to come up with a solution that is “outside the box” of possible outcomes of arbitration or a lawsuit. A judge or arbitrator can only award one party or the other a “win.” Mediation has much more flexibility.
Finally, even if you enter the mediation with the right attitude, the desire to resolve the matter, and the right adviser by your side, and the mediation does not result in an agreement, the process is worthwhile. By going through the process, both sides gain insight into the way that the other is thinking . This alone is worth the price of admission because strategy can be based on this insight even where the discussions themselves are not later admissible in Court. Furthermore, even though the process is totally confidential, by working toward resolution the parties are always closer to the end when they walk out of the room.
In short, I’ve seen the dispute resolution process from almost every angle (aside from the bench) and I think I can safely say that mediation is worth a shot. The best that can (and often does) happen is a resolution of the issues between the parties short of the time, expense, aggravation and risk inherent in litigation. At worst, you and your legal counsel gain insight into the reasons behind the litigation from the other sides perspective. A win win if there ever was one.
Whether you’re a construction attorney or a professional in the construction industry itself, what are your thoughts? I’d love to hear them.
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