Should Construction Disputes Be Mediated?

Constrcution Law and Mediation Attorneys Serving the State of Washington

Within Washington State’s construction world, there is all too often a “battle of the forms.” Owners and developers present the contractor with long, complicated contracts that are typically too one-sided. The contractor responds with its own array of modifications – anything to try to level the playing field. An “agreement” may be signed, but sometimes there isn’t a true meeting of the minds. With all the contract complexity, disagreement leads to costly litigation.

More and more these days, construction contracts call for some sort of alternative to a courtroom battle. Some agreements call for arbitration. Yet many developers and contractors find that arbitration can be just as costly and time-consuming as actual litigation. There is also little if any, opportunity to “appeal” an adverse ruling. The arbitration may be an alternative to classic litigation, but more and more, astute contractors and developers are turning to mediation as an “alternative to the alternative.” Properly utilized, mediation can save a business relationship and even a construction project.

Mediation: Isn’t it the Same as Arbitration?

While both arbitration and mediation are alternatives to a bitter court battle, they are not identical by any means. Mediation tends to be less structured than arbitration, with both parties working through an agreed-upon mediator, whose task it is to assist in finding an acceptable resolution to the conflict. In most mediation situations, there is no win/lose determination; the mediator helps the parties toward an acceptable compromise.

Control Over the Process

In some respects, mediation is quite similar to negotiating an agreement itself. It’s different in that the parties, and their legal counsel, gain the perspective of a neutral figure. Because mediation’s goal is to arrive at an agreement, the parties within the dispute tend to retain greater control over the process.

Neither Party Needs to Lose

Unlike most court battles, with mediation, there usually is no “winner take all” decision. Instead of win/lose, the parties can end with a win/win. Because the end result is mediated, instead of imposed upon one of the parties by a judge or arbitrator, the chances of a successful conclusion are enhanced. After a bitter and expensive court battle, the losing party may choose simply not to comply.

Time and Cost of Mediation

Generally speaking, because most mediation processes are more informal than trials before a judge, or even hearings before an arbitrator, they can be less costly. Resolutions can be quicker since there are no arbitrary discovery periods or other scheduling issues with a judge. Usually, the costs of the mediation are split between the two sides. The mediation process encourages parties to discard posturing and candidly discuss their real objectives.

Mediation Isn’t Appropriate for Every Construction Dispute

Mediation is no panacea; it won’t work when one party or the other is absolutely convinced as to the correctness of its position. It may not be successful if one party refuses to discuss the issues dispassionately. When one considers the alternative, however, mediation can be an effective way to move forward.

Bolan Law Group.: Experienced Construction Law Experts

Bolan Law Group. has provided general contractors, business owners, developers, subcontractors, and others in the construction industry with comprehensive legal services for over 30 years. Our experienced business lawyers have provided legal counsel in small and large projects alike. We work with clients closely to resolve matters as quickly and economically as possible. We can assist you with issues related to arbitration, mediation, and formal litigation. We work collaboratively – sharing strategies, ideas, and experience. Our team of business attorneys and staff is big enough to handle your matter, yet we are small enough to provide you with the most personal legal service possible. We pride ourselves on designing the simplest, most effective solution for your legal issue. For assistance with any sort of real estate issue, contact us on the web or call our office at (253) 470-2356.

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