Posts

Showing posts with the label Contractor

Litigation-I Win, You Lose vs. Mediation-Win/Win

Image
  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 ...
Read more

Why You Should Mediate and/or Arbitrate Your Construction Case

Image
As a result of the pandemic, the courts have a terrible backlog of cases, and parties who are trying to resolve disputes will wait months, if not years to see a resolution of their cases. The courts in Massachusetts have been doing a fantastic job of handling the issues raised by Covid-19, but there has been an unpreventable delay in processing cases. Mediation and arbitration have always been effective ways of resolving conflicts. Now, more than ever, parties should consider avoiding lawsuits and hiring an independent mediator or arbitrator to bring finality to their disputes.  What is the difference between mediation and arbitration?  Mediation is a voluntary process whereby the parties try to negotiate their dispute with the aid of a third-party neutral. The mediator has received training in trying to facilitate a resolution. The advantages of mediation are numerous. It is a voluntary process and the proceedings are confidential. If the parties arrive at a resoluti...
Read more

Legal Tools for the Contractor's Toolbox

I was just thinking about two recent clients who were owed money by owners.  One had a contract that was not in compliance with the Massachusetts Home Improvement Contractor Statute and had waited a long time to pursue his money.  The other had a contract that fully protected him and contacted me once communication had broken down with the customer.  In the first case, my client ended up writing the homeowner a check because he couldn't face the risk of the multiple damages, attorney's fees, interest and costs that are available to the homeowner under the Consumer Protection Statute (c. 93A).  In the case of the second, I had no qualms about filing a mechanic's lien and pursuing payment aggressively because my client was in full compliance with state law. Just as no respectable contractor would work with poor quality tools, contractors and construction companies should make sure that they are working with high-quality legal "tools" that will protect them ...
Read more

How to Get Paid

It seems as though clients' disputes come in waves.  The latest pattern that has emerged is contractors are finding that they are having trouble getting paid.  As usual, the best way to deal with this problem is by preventing it entirely.  The two tools in your arsenal are your contract, and written change orders. Prior to starting any job, a contractor or construction company should negotiate a clear-cut payment schedule that makes payment conditioned upon milestones. The work should never get ahead of the payment and vice-versa.  Payments should be broken down into numerous, frequent payments.  That way if either side is having money trouble, it will be discovered before huge receivables accrue. The contract should also have a clause that the contractor is entitled to stop work if payment is not made within a certain time period.  That way the contractor will not be accused of breaching the contract or abandoning the job if he refuses to wor...
Read more