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 ...

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 defect claims.

2.      Arbitration is usually more expedient and less expensive.  When you file a lawsuit, courts control the schedule.  There are frequently delays; especially when motions are filed.  Discovery (the exchange of information) can drag disputes out because there are requests for production of documents, interrogatories (written questions) to be answered and often, depositions (testimony under oath).  In arbitration, the parties usually exchange the documents they intend to use and there are no interrogatories and more limited depositions.  Parties spend less money on contending with procedural issues and the process focuses more on the issues at hand.

3.      Arbitration is private.  Lawsuits are public record.  The outside world never has to know that the parties have arbitrated a dispute.

4.      The rules of evidence do not apply. 

 

Arbitration is final.  This is both a blessing and a curse.  In Massachusetts, an arbitration decision will almost never be overturned on appeal, even if the arbitrator does not properly follow the law. Arbitrations can only be set aside if the arbitrator committed fraud, was biased or if the arbitrator exceeds his authority.

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.  Construction arbitrators or mediators have typically been working in the field for years, usually as attorneys, and understand the nuances of construction disputes. 

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.  You can contact me at agoldman@goldmanlg.com or 617-953-3760.  Please contact Goldman Law Group today!

 

 

 

 

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