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 ...

Is Your Construction Arbitrator Biased?

 


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 aside past experience and judge the matter fairly?

As with Supreme Court justices, some arbitrators are “strict constructionists” and will not consider any deviations from a contract.  Others give more weight to the course of conduct of the parties and the equities of the situation.  Decide the type of arbitrator you want before making a choice.

So, how do you pick a construction arbitrator?  Start with someone who has diverse and extensive experience in the field.  Then consider their approach to the law.  Do they understand the subject matter of the dispute? Do they apply the law to their decisions?  Do they consider the equities of the situation?

Arbitration is not appealable in Massachusetts.  I think it is only fair for parties to be able to ask the arbitrator about his/her philosophy and approach to arbitration before making a choice.  Arbitrators should be willing to explain their approach to the arbitration, how they handle the process and decide their awards.  The choice of an arbitrator is an irrevocable decision that should be made wisely.

 

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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