Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...

When the Builder is Worried About Getting Paid

Let's face it. These are hard times economically, and even when an owner starts a project, at times the contractor might have legitimate concerns about getting paid. An owner will not want to pay a builder ahead of the work, but the builder will want to know that there are available funds for completion of the project.

Here is a contract clause for dealing with that issue:

NO ACCELERATION OF PAYMENTS BUT ESCROWING ALLOWED:
The Contractor may not require that payments be made in advance of the times specified in the Payment Schedule for the reason that he deems himself or the payments to be insecure. If, however, the contractor deems himself to be insecure by reason of the following: late payments or owners refusal to pay according to payment schedule or notice of the owner’s insolvency or bankruptcy. The Contractor may require, as a prerequisite to continuing the work described herein, that the balance of payments under this contract that are in control of the Owner(s), shall be placed in a joint escrow account that requires the signature of both the Contractor and the Owner(s) for withdrawal.

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