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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 mutually beneficial solutions.   It res
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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 mutually beneficial solutions.   It res
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Arbitration v. Litigation-Which one is more efficient?

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Last week I arbitrated a case over Zoom.  The hearing lasted one hour.  The Claimant, a construction company, was owed high five figures.  They did not have an attorney’s fee clause in their contract. The Respondent never answered the arbitration demand and did not appear. The Claimant presented his damages and told me the history of the project.   I awarded him the full value of his claim plus interest and costs because they were provided for in his contract. What if this had gone to litigation?   He would have filed a lawsuit and paid for service on the defendant.   He would have had to wait twenty days for him to file an answer. He would have to file a request for default. He would have to file a motion for default judgment. Even if the claim were for a “sum certain,” the court would probably require a hearing on damages. He will have to appear at the hearing and testify as to his damages.   If the court is busy that day, he may have to wait around for hours. He
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How to Calculate Construction Defect Damages

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How to Calculate Construction Defect Damages As an arbitrator, mediator and advocate, I am often surprised by claimant’s calculation of their damages in construction matters.   They come to hearings seeking wildly inflated damages or simply do not calculate their damages properly.   I cannot tell you how many times I have heard plaintiffs ask for all their money back, request lost wages or feel they are entitled to pain and suffering for the inconvenience they have experienced when a project does not go well.   This leads to inflated damage claims, which can hinder settlement and benefit only the lawyers. To avoid such outcomes, it is crucial to understand how to calculate damages correctly. Image courtesy of sscreations at FreeDigitalPhotos.net In most cases, Owner’s claims or for defective work. To support their claim, Owners must either hire an expert to evaluate the job or obtain subsequent quotes from at least two sources for repairs and completion. Both methods can serve as a
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Why You Should Arbitrate Your Construction Dispute

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Many of my colleagues are dissatisfied with arbitration due to its virtually unappealable nature in Massachusetts. The bases for appeal are extremely limited and include only bias on the part of the arbitrator, fraud, and other difficult-to-prove allegations. Moreover, there is no concept of "manifest disregard of the law," which means that the arbitrator can fail to apply the law correctly. Despite this, the reality is that most cases settle, and of those that go to trial, only a small percentage are appealed. For example, in Massachusetts last year, out of 52,299 civil matters filed, there were only 435 appeals, representing less than 1% of the total civil matters filed. Construction law is a specialized area, and it is crucial for a judge or arbitrator to have experience in the subject matter of a dispute. The course of conduct in construction projects is often relevant, making experience in the field important. Therefore, the lack of a right of appeal should not discour
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TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2023

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  TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2023   As I think about developments in construction in the last year, I would say that construction seems to have become more stressful.   Rising prices due to fallout from COVID-19 and inflation make money a more difficult subject.   Consumers are monitoring expenditures closely and contractors are having to account for price increases.   Trust between the parties is more important than ever.   Communication is paramount and transparency is key.   At the end of the day, running your business in a professional fashion is more important than ever.   My New Year’s Resolutions for 2023: 1.      Be An Educator       Many people have never done home improvement projects before.   You have to teach them what to expect.   For example, I have seen many situations where homeowners want to bring in their own subcontractors or buy their own supplies.   You need to explain to them that you have your own subcontractors who you work with regularl
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