Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Some Random (or Not So Random) Musings on a Thursday

The Arbitration Rock
The Arbitration Rock (Photo credit: Wikipedia)

As I am sitting here this week trying to get back on the blogging bandwagon (and I apologize for the less consistent posts as of late) and dealing with the occupational hazard of “bloggers block,” I thought I’d just go through the many great posts and blogs of friends and colleagues in the relatively small world of construction law. When all else fails, I can always count on these folks to give me a bit of inspiration.

Two posts hit me with the inspiration stick. The first is Matt Bouchard’s (@mattbouchardesq) post on forum selection and the interaction with various state statutes.

Matt’s post got me back on my mantra for both attorneys and construction professionals that the most important document for a construction project is the contract. Everything from venue and what law applies to how you are going to deal with disputes and change orders can and should be set within the terms of that contract. The contract is the document that sets the expectations for the parties. It is a document where you and the other construction business (whether GC, subcontractor or supplier) can create the law for that particular project. This is particularly true in Virginia where the contract will be enforced as written absent some statutory prohibition against a certain term. Of course, this last statement is a general one and, as Matt points out in his piece, the rules are different from state to state. You should always get a local, experienced construction attorney to assure that your reading of your construction contract is the correct one.

The second post is from my buddy Craig Martin (@craigmartin_jd) relating to whether arbitration is truly the best way to resolve a dispute. Craig’s short post is an insightful one and presents what I think is a great argument against mandatory arbitration as the be all end all for dispute resolution. For those of you who aren’t attorneys, arbitration is essentially private court. It is what many people I talk with think of when they think of ADR. Essentially, you take your dispute out of the court system and put it in the hands of a private individual who the parties pay (usually by the hour) to resolve the dispute in much the same black and white manner that a judge would. While a carefully drafted arbitration clause can streamline and hopefully make the process less expensive, often mandatory arbitration clauses simply refer to a privately drafted set of rules that may or may not make the process any less expensive or burdensome.

Contrast this process with mediation which is a voluntary, confidential process during which a mediator (like me) assists the parties to resolve the matter short of either litigation or arbitration. As any of you that read this blog know, I am a huge fan of this process. In my years as a construction attorney, I’ve run into very few situations where mediation should not be tried. Mediation gives the parties a chance to reach a business resolution that would be unavailable in the “thumbs up/thumbs down” world of litigation. If nothing else, the process gets the parties closer to the finish line than they would have been even if an agreement is not reached at the mediation.

Thanks to Craig and Matt for the inspiration. I would appreciate hearing from you readers on either of these random musings.

As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.

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