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Showing posts from November, 2022

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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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 of mechanic’s liens, local construction laws, delay and construction
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