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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 mutually beneficial solutions.   It res
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When You Shouldn’t Mediate Your Construction Dispute

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Photo by  Cytonn Photography  on  Unsplash Mediation is a wonderful form of dispute resolution.  It allows the parties to craft their own resolution to a conflict.  It frequently repairs relationships.  Parties tend to comply more with mediated settlements.   That said, there are definitely times when you should not mediate. As a refresher, mediation is an alternative form of dispute resolution where the parties attempt to negotiate a settlement of their dispute with the aid of a third-party, neutral mediator.   It is a confidential process.   If the parties come to an agreement, that agreement becomes an enforceable contract.   Since parties have control over whether they come to an agreement, they are much more likely to comply with a mediated settlement than a judgment. So, when not to mediate? When the other side refuses. Mediation is supposed to be a voluntary process.   The parties are supposed to attend a mediation session in good faith.   There is no point in wasting ever
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What if the Debate Were Moderated by a Trained Arbitrator/Mediator?

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  I am guessing like the rest of you, I am still reeling from last night’s presidential debate.    I was so tense during the whole thing that I felt as if I had been through a horrifying experience. How could that have happened?  Trump came in like a bulldozer and just kept stepping on the gas.  Sadly, Biden did not seem to know how to deal with this attack.  As Dana Bash on CNN stated, “It was a shit show!” I couldn’t help imagining how I, with my arbitration/mediation skills, could have moderated the debate, which may have resulted in a very different outcome. State the Rules and Control the Process. In every mediation and arbitration, I remind the parties that it is my job to control the process.  They provide the evidence and information, but when it comes to procedure, I am the boss. So, knowing Trump’s track record, I would have sternly reminded the parties of their prior agreement to the debate format. “You will each have two  uninterrupted  minutes to respond to the questions.”
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Why You Should Mediate and/or Arbitrate Your Construction Case

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As a result of the pandemic, the courts have a terrible backlog of cases, and parties who are trying to resolve disputes will wait months, if not years to see a resolution of their cases. The courts in Massachusetts have been doing a fantastic job of handling the issues raised by Covid-19, but there has been an unpreventable delay in processing cases. Mediation and arbitration have always been effective ways of resolving conflicts. Now, more than ever, parties should consider avoiding lawsuits and hiring an independent mediator or arbitrator to bring finality to their disputes.  What is the difference between mediation and arbitration?  Mediation is a voluntary process whereby the parties try to negotiate their dispute with the aid of a third-party neutral. The mediator has received training in trying to facilitate a resolution. The advantages of mediation are numerous. It is a voluntary process and the proceedings are confidential. If the parties arrive at a resolution of the
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Coronavirus and Construction-Clauses for Your Contracts

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Photo by  Ben Garratt  on  Unsplash On Friday, April 17, the City published a draft COVID-19 Safety Policy for Construction.  These are new requirements designed to make job sites safer for workers and communities that are expected to be implemented by Monday, April 27.  The requirements offer guidelines for performing construction work for the “new” normal.   Essential work in Boston includes “small residential construction projects in dwellings of 3 units or less (for example, kitchen or bathroom remodeling)” which means that you may be returning to work. In addition to following the protocols, how can you, as a company, protect yourself legally as new COVID-related issues arise?   One way is by including an addendum to current contracts and adding clauses in new contracts that anticipate possible scenarios and how they should be addressed. State the following:     This is an Addendum to the existing Construction Agreement dated XX/XX/XXXX.  It is incorporated here
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Coronavirus and Construction-Guidance as of March 25, 2020

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Yesterday the Governor wrote a letter providing further guidance for construction projects in Massachusetts.   It provides additional information and clarity regarding the March 23, 2020 Order "Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People." Photo by  Alex Iby  on  Unsplash I am writing this newsletter in order to (hopefully) provide more guidance for those of you in the residential construction arena. The first issue to keep in mind is that the Governors’ order supersedes any rules issued by municipalities: “This Order supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the objectives of this Order.” This is directly from the order: Exhibit A of the Order contains two entries that designate construction projects as COVID-19 Essential Services and identify
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Coronavirus and Construction-Slow the Spread!

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Yesterday I received my first call from a client with a corona-virus related legal question: If their company suspended projects for two weeks, would they get sued?  Would they be facing legal liability? So, I would like to provide some reassurance and advice for those of you in the construction industry. First, the disclaimers.   I am not a medical professional.   We have not formed an attorney-client relationship (unless we have one already).   I am not advising you on your unique situation. Photo by  CDC  on  Unsplash 1.        Can I put projects on hold without facing liability? Yes.   At the end of the day, this is a national emergency.   You have the right to protect yourself, your employees, subcontractors and your customers. 2.        Are there clauses I can put in my projects that will protect me? Yes. Some of you have one already, but it can be expanded.   If you have ever wondered what “force majeure” means, it refers to natural disasters or A
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