Originally posted 2013-05-13 09:00:58.
Ever since I read the two articles referenced in last week’s Musings, I have been thinking about how I as a Virginia construction attorney can be part of the solution. Then, fortuitously, my good friend and ubermediator, Victoria Pynchon, dusted off her Negotiation Law Blog to discuss 10 Reasons To Negotiate Instead Of Suing The Bastards.
As always, Vickie has insight into the minds of those in conflict (she did write The Grownup’s Guide to Conflict Resolution (somehow I ended up with a blurb) and Success as a Mediator for Dummies). Ms. Pynchon, a wise lady who has assisted and inspired me as a mediator finishes her recent post with:
My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, “let’s sit down and figure out how best to serve your interests and mine at the same time.”
While I always recommend that you get in touch with your friendly neighborhood construction attorney early in the process (where he or she can be of most help), this is not always the situation. Problems occur out of the blue. Even he best construction projects can take the fast elevator to Hades and disputes occur. All is not lost and litigation is not inevitable. The involvement of experienced counsel can (and in my mind should) help avoid forcing a judge or arbitrator to decide your fate.
While the negotiation and eventual settlement of a dispute may hurt a lawyer’s bottom line (thus the common thought that attorneys (even construction litigators like me) will always push to run up the bill by avoiding such a result), the wise construction lawyer sees that control of the process and the use of negotiation leads to a happier client and more likely a repeat one. In short, the “counselor” aspect of a lawyer’s job description is as important as the other aspects. Far from clogging up the process, a good construction lawyer will streamline the process and help resolve what is in many cases a no-win (financially) situation and help get to the best resolution of your dispute.
My recommendation (aside from reading Vickie’s post) is to get the advice of an experienced construction attorney (whether a solo practitioner or a lawyer at a firm) and at the very least use that advice to get as much lemonade from the lemons that got you into your dispute in the first place.
I would love to hear your responses whether they be positive or negative. How do you feel about the debate relating to the involvement of lawyers in the construction world?
For more on this debate (attorneys in construction) check out my buddy Craig Martin’s (@craigmartin_jd) recent post.
As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.
Thank you, as always, Christopher, for your kind words. On the subject of lawyers, litigation and clients, here’s what I’ve been learning as a consultant rather than a litigator. Find an attorney who is willing to serve as an advisor. Everyone who’s been treated to a meal at the Injustice Cafe wants revenge as well as recompense; wants threats and demands; wants his lawyer to “sue the bastards.” Don’t think it’s just lawyers who drive litigation. Rage is powerful but irrational. Find a lawyer like Christopher who is willing to sit down with the other side to determine how much of the dispute arises from miscommunication, how much from ill will and how much from self-serving. A lawyer like Christopher who is trained as a mediator will find any number of solutions that can serve as many of both parties’ interests as possible. He can help his clients and opponents realize that their own self-interest is too intertwined with their bargaining partner’s to let a long, expensive, attritional war of words overtake everyone’s better judgment.
Thanks Vickie. I appreciate your checking in. Your thoughts are always welcome.
I completely agree.
Another thing that I hinted at in my “Are there too many lawyers in construction” article is that it may not necessarily be the lawyers fault that the system is (or may be) broken. It may be the contractors. After all, if the lawyers bring them to the settlement pond, and the contractors don’t drink…there’s not much to be done there.
Here you suggest that there is value in negotiation in contrast to litigation. You and I have both written in the past about the perils of litigation and the value of finding compromises, or trying to proactively avoid disputes. Sometimes, however, it is the clients that make their own bed.
Thanks for checking in Scott. I agree. Many times it’s the clients and/or circumstances that cause the issues. It’s our job to either help avoid the situations that cause litigation or make the best out of what is a bad situation.
I agree with you that it is important to get in touch with an experienced construction lawyer. I would like to know, can you write another post telling us the qualities of an experienced construction lawyer or how to choose an experienced construction lawyer?