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 mutually beneficial solutions.   It res

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!

 

 

 

 

Popular posts from this blog

Eligibility Requirements for the LEED Green Associate Exam from Green Building Education and Training

What are the eligibility requirements for the LEED Green Associate exam? http://www.green-buildings.com/content/78626-what-are-eligibility-requirements-leed-green-associate-exam After March 31st, 2009, candidates for the LEED Green Associate (GA) credentials must fulfill eligibility requirements. LEED Green Associate candidates are required to do ONE (1) of the following: Option 1: You must be (or have previously been) employed in a sustainable field of work This is perhaps one of the more nebulous requirements posed by the GBCI, because no definition of a "sustainable field of work" is given. The USGBC does state that the company needs to "relate to environmentalism or the green building industry". If you are in any doubt that your profession would qualify, contact the GBCI at gbci.org or by calling 1-800-795-1746. Option 2: You must be (or have been) involved in a LEED Certification Project To prove eligibility by way of LEED project involvement, you must have bee
Read more

EPA Starts Assessing Fines for RRP Violations

From Mark Paskell's blog:  http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/ The press release below came from the EPA.  It has been hard to persuade contractors that they need to become certified when it did not appear that the Renovation, Repair and Painting Rule was being enforced.  Now, there have been two substantial fines publicized: one in Connecticut last month ($30,700) and the one listed below.  It is time to have your contracts reviewed, insert clauses to protect you under the new law, and have your insurance policy reviewed for lead coverage! Kansas City, Kan., March 31, 2011) – Window World of St. Louis, Inc., has agreed to pay a $19,529 civil penalty to the United States to settle allegations that it failed to notify owners and occupants of at least 20 St. Louis area residential properties built before 1978 of lead-based paint risks prior to performing renovation work at those locations. Accordi
Read more

Should a Contractor Have the Homeowner Test for Lead?

I would like to learn more about the advisability of lead testing.  Homeowners might not want their homes tested for lead, because it becomes public record, and may interfere with the sale of a home or the ability to obtain a mortgage or homeowners insurance.  In addition, I strongly advise contractors not to do the testing themselves.  Let the homeowner pay an independent company to do it.  Otherwise if the GC brings a claim against a lead testing company for a false negative, the company might state that the GC did not use the test kit properly.  If the homeowner does have the house tested, consider refusing to do the work unless the homeowner has lead abatement work done.
Read more