As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

Why You Should Mediate and/or Arbitrate Your Construction Case

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 their dispute, it is memorialized in a settlement agreement that has the force of a contract.  A good mediator will draft the agreement with consequences if the parties do not comply with its provisions. Since the parties craft the agreement themselves, they are more likely to comply with its terms. 

In arbitration, the parties submit their dispute to a third-party neutral who serves as a private judge or arbitrator who rules on the case. The arbitrator holds a hearing that is similar to a court proceeding, but the rules of evidence do not apply, and the proceeding is private. The arbitrator’s award is usually binding and generally non-appealable. 

In Massachusetts, an arbitration decision will generally not be overturned on appeal, even if the arbitrator does not properly follow the law. For that reason, it is extremely important to be careful when choosing an arbitrator. I don’t believe it is possible to “game” an arbitration, but it is helpful to choose someone who understands the issues and has experience in both sides of a dispute. It is not an accident that there are professionals who become known as construction arbitrators or mediators. They have generally been working in the field for years, usually as attorneys, and understand all of the aspects of a dispute. 

Most of my cases are currently being taken out of the court system and proceeding to alternative dispute resolution. Although parties have opted to turn to private dispute resolution in the past, it has gained in popularity since the coronavirus pandemic. Online portals such as Zoom make it easy to conduct a proceeding without the stress of in-person exposure. Zoom has tools that make meetings in private breakout rooms an easily accessible option. Zoom allows for meetings that do not require masks and Plexiglas. It is easier to assess someone’s demeanor over Zoom rather than while social distancing. 

I have been a construction lawyer for over thirty years and have represented all sides of construction disputes; builders, contractors, developers, owners, homeowners, subcontractors and suppliers. I trained as a mediator in 1996 and have had many hours of training since. I started arbitrating in 2003 and am currently on numerous arbitration panels including AAA Construction and Commercial as well as the FINRA panel.

I am happy to serve as a neutral and help you resolve your disputes without resorting to litigation. Given the availability of Zoom and other virtual portals, I can arbitrate anywhere in the country. You can contact me at agoldman@goldmanlg.com or 617-953-3760. Please contact Goldman Law Group today!

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