Construction Litigation, Arbitration and Mediation

It is generally better to resolve disputes long before it becomes necessary to enlist the help of an attorney to pursue or defend a claim. This is true regardless of the area of law. In the area of construction, the contract between the parties often determines whether the claim will be resolved through litigation, arbitration or mediation.

At Porter Law Group, we understand not only the legal issues surrounding construction disputes, but also how various situations frequently play out in the real world. Whether in litigation, arbitration or mediation, we use our skill and experience to pursue the most favorable result possible for our construction clients.

Differences between litigation, arbitration and mediation

If you are a viewer of TV courtroom dramas, you are familiar with the litigation process. To commence a litigation, a lawsuit is filed in the State or Federal Court. Depositions, Document Demands, Interrogatories, Requests to Admit and other forms of “discovery” are made to determine the relevant facts and access the relevant documents. Various motions to the judge may be made, and eventually the case is scheduled for a courtroom trial. Along the way, efforts are made to settle the case before trial. These settlement efforts are either imposed by the court or initiated by the litigants or their attorneys. Most of these efforts take the form of a nonbinding or “judicial” arbitration or mediation or a “settlement conference,” which is similar to mediation. Most litigations settle before they reach their trial date. If the case does not settle, it is then tried before a judge or jury.

Arbitration is similar to litigation, except that instead of participating in a “trial,” the parties have an “arbitration.” Instead of a judge or jury, there is an “arbitrator” or a panel of arbitrators. Most key events take place in the conference room of the arbitrator, rather than in a courtroom. The arbitrator is often a retired judge or senior attorney who is also sometimes particularly knowledgeable in the area of law at the heart of the dispute. Sometimes arbitration is required by the terms of the contract that binds the parties. Other times the parties mutually agree to use arbitration instead of going to court or as a means to end the court process.

The rules under which arbitration is conducted are sometimes determined by prior agreement, and sometimes determined by virtue of the forum selected. For example, the widely used American Arbitration Association has published sets of rules for conducting arbitration. The cost of the arbitrator and arbitration is often split between the parties. Sometimes, the party who wins the arbitration receives an arbitration decision which requires the losing party to reimburse the winning party for what they paid for attorney fees and costs, as well as what they paid for the arbitration and arbitrator. Arbitration decisions are often sent to the court so the judge can give court approval to the decision as if it had been originally decided by a judge or jury in a courtroom. It is often more difficult to appeal an arbitration decision than one originally made by a judge or jury. Arbitration is often less expensive than litigation, although this is not always the case.

Mediation is different from either litigation or arbitration. With mediation, the parties appear before a neutral learned third person or sometimes a panel of such persons who have been given the title of “mediator.” Through a series of discussions and negotiations known as “mediation,” an effort is made to resolve the differences between the parties, usually through compromise. Sometimes mediation is used during the litigation or arbitration process to try to resolve disputes and avoid the further time and expense of continuing litigation or arbitration. If mediation is not successful, the litigation or arbitration process continues. Mediation is generally nonbinding. The parties usually share the cost of the mediator equally. Mediation is usually less expensive than either litigation or arbitration. Where the parties are reasonable people and a good mediator is used, it can be an excellent and cost-effective method of dispute resolution. Where either party is unaware of the law, or the facts, or is emotionally unsuited to compromise, mediation is usually unsuccessful.

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