Most design and construction contracts contain “dispute resolution” provisions. Some contracts state that the parties must “mediate” a dispute before “litigation” or “arbitration.” Through mediation, the parties attempt to resolve their dispute with the assistance of a mediator. The mediator is not a decision-maker. Rather, the mediator assists the parties through facilitating a negotiation. Some mediators will offer their opinion regarding the likely outcome if the case isn’t resolved through negotiation. Neither party can be forced to settle the dispute. The benefits of mediation can be a quicker resolution of the dispute and, in many instances, there can be creative solutions rather than just an exchange of money. The parties are also in control of the outcome.
Contrary to mediation, litigation and arbitration are binding forms of dispute resolution where a judge or an arbitrator hears evidence and renders a decision. Historically, construction industry contracts and policy have favored arbitration over litigation as the preferred form of binding dispute resolution. This is primarily because the parties can select an arbitrator or panel of arbitrators with knowledge of the construction industry. Arbitrators can be design professionals or contractors but, typically, are lawyers whose practice focuses on construction matters. The arbitration process is also viewed as being more streamlined in the discovery process. However, that process really depends on the complexity of the dispute because arbitrators have a fair amount of flexibility in what discovery to grant the parties.
Litigation is where a judge or a jury decides the case instead of an arbitrator. The litigation process involves more formalized rules than in arbitration. In both arbitration and litigation, one party is typically awarded money and, unlike in mediation, there is less opportunity for a creative resolution. Of course, some judges are more familiar than others about the construction industry, depending on their experience. If you have a strong case from a legal perspective, you may prefer to litigate the dispute rather than arbitrate. This is because judges and juries are bound to follow the law. While arbitrators must base their decision on the law, they also have a little more leeway to reach an “equitable” result. In that regard, decisions by a judge/jury are going to have a better chance of being appealed than the decision of an arbitrator.
As president of Hirschler and head of the firm's litigation section, Courtney knows how to lead people and projects to a successful outcome.
Leveraging deep experience in the construction industry, Courtney advises public and ...
Kelly’s practice focuses on construction law, commercial and product liability law, with an emphasis on dispute resolution—including mediation, arbitration, jury and bench trials in state and federal court. She routinely ...
Nate fully engages in each case and shoulders his clients’ needs. Communication, efficiency and careful judgment define his practice. In every case, he investigates competing claims to thoroughly understand their strengths ...
A professional engineer (P.E.) and an experienced lawyer, Webb began practicing at Hirschler Fleischer following four years of work as a consulting engineer. His multidisciplinary practice focuses on general business and ...
SubscribeSubscribe to Hirschler by Email
- Miller Act Notice More Than 90 Days Before A Subcontractor’s Final Day of Work Held Untimely
- Virginia Supreme Court Allows Sub-Sub Material Supplier To Recover Directly From General Contractor For Unpaid Material
- New Virginia Law Can Make General Contractors Liable for Subcontractors' Employee Wages
- OSHA Changes Course on COVID-19 Record-Keeping Requirements
- New OSHA Guidance Suspends Enforcement of Record-Keeping Requirements for COVID-19 Cases in Most Industries
- What the Virginia Temporary Stay at Home Order Means for Your Business
- Ten Tips For Addressing Coronavirus Concerns In Your Workplace
- Closure of “Non-Essential Businesses” and “Stay at Home” Orders: What Do These Mean for the Construction Industry?
- What Employers Need to Know About Paid Leave Under The Families First Coronavirus Response Act
- OSHA Guidance on Workplace Safety and Reporting in Light of COVID-19
- Little Miller Act
- Miller Act
- Occupational Safety and Health Act (OSHA)
- COVID-19, Coronavirus Outbreak
- Dispute Resolution
- Joint Checks
- Unjust Enrichment
- Workforce Development
- Government Contracts
- Mechanic's Liens
- Department of Professional and Occupational Regulation (DPOR)
- Virginia Employment Commission (VEC)
- Virginia Workers' Compensation Commission
- Uniform Statewide Building Code
- Change Orders
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- August 2019
- June 2019
- April 2019
- February 2019
- January 2019
- December 2018
- October 2018
- September 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016