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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 ...
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To Arbitrate or Not? That is the Question.

  There are lawyers who will not include arbitration clauses in their contracts and they avoid arbitration at all costs.   I have spent the last 33 years litigating disputes and it is my opinion that arbitration is preferable in most cases; especially in construction disputes. In arbitration, the parties submit their dispute to a third-party neutral who serves as a private judge who then 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 non-appealable.   The advantages of arbitration are numerous: 1.       The parties choose the arbitrator.   Construction is an area where subject matter knowledge is important.   You want an arbitrator who understands the course of conduct in construction projects.   Many judges in the courts are not familiar with the nuances...
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Is Your Construction Arbitrator Biased?

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  The first thing clients ask me when we start choosing an arbitrator is: “What is the arbitrator’s reputation?   What is the arbitrator’s background?”   In other words, “Is the arbitrator biased?” Honestly, in my thirty-four years of experience, I can’t say that I have ever encountered an arbitrator who was biased in favor of builders, owners, subcontractors or suppliers.   Most try to be fair and apply the law.   However, we still try to “game” the system by considering the arbitrator’s background and whether it may unconsciously cause him/her to lean in a specific direction.    Even if that’s the case, it is the arbitrator’s ethical duty to draft an award that is based on the facts and the law. One’s background does influence perception.   We try to remain neutral, but if an arbitrator’s experience is mainly in representing developers, it may be difficult to understand the general contractor’s point of view.   Can your arbitrator set a...
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TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2022

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TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2022   Can you say COVID fatigue?   As I sit here to write this year’s resolutions, I can’t believe that coronavirus is still very much with us.   In fact, you can just read my newsletter from last year, and all of them are still relevant. The difference this year is how divided we have become.   Some are living life as it is more or less normal, and others are still playing it safe.   One thing is certain.   The virus has disrupted construction and the way you do business.   On the positive front, I keep hearing that business has never been better.   On the negative side, there are still issues with increases in the cost of materials, shipping delays and unavailability of subcontractors.   Last year I wrote a number of blog posts with clauses to add to your contracts and refined them as new developments occurred. See, http://buildingconfidence-llc.blogspot.com/2020/04/coronavirus-and-constructio...
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