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Archive for the ‘Mediation’ Category

Today, I am taking a big ‘risk’ and letting Christopher Hill pinch hit as a guest blogger here on ‘Building New Business’. When I say taking a ‘risk’, I mean get ready for a real writer and excellent blogger!

I have gotten to know Chris in the past year and a half through his wonderful blog ‘Construction Law Musings’, via email and Twitter and his blog is the reason I did not want to enter any ‘Best Blog’ contest. I am a big fan of his and have learned a great deal from him and I am confident you will as well.

So, without further ado…Ladies and Gentlemen, Mr. Christopher Hill.

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As I left a mediation last week at 8:30 at night, I realized something that I knew all along. Mediation works.

Why does mediation work? For several reasons that I can think of.

The first, and likely most important is that lawyers are expensive. In most construction cases, we charge by the hour and those hours build up, especially close to a trial date. A mediated settlement can avoid this sharp uptick in attorney fees that always occurs in the last month before trial. Therefore the earlier the better.

The second is the flexibility to make a business decision. Commercial contractors and subcontractors are in a business, and they should be making business decisions. While one such decision can be to go to litigation; litigation is not always the best solution from a financial, or stress perspective. Construction professionals, with the assistance of construction attorneys, can come up with a creative way to deal with a problem and solve it.

While sometimes trial is inevitable (yes, even with a mediation), mediation allows for more options. At trial, someone wins and someone loses. A judge must pick sides and leave someone (and possibly both sides) unhappy. Then there are appeals, collections, and other expensive issues to deal with. Mediation allows compromise and allows the parties to agree to terms that the Court (or arbitration for that matter) could not give them. Add to this the opportunity costs of protracted litigation and the idea seems to be a no brainer.

The third is that a contractor can leave a mediation satisfied that they took part in the process and in controlling their own fate. Let’s face it, litigation is a foriegn world for most construction professionals. Once that call is made to their lawyer, the process can seem to be out of their hands, and in many ways it is. A good mediator can change that. While the compromise may not result in complete satisfaction, trial can, and often does result in dissatisfaction. At least with mediation, one can feel as if he was in some control and not on a headlong charge to oblivion without a way to put on the breaks.

Don’t get me wrong, mediation must be approached with a spirit of compromise and sometimes starting litigation is the only way to get there. If the parties aren’t committed to the process, no settlement can occur. Mediation does not work all the time, particularly if the parties present hurdles to the process.

In short, while litigation has its place and I am a construction attorney with the experience to pursue a case from start to finish, I would much rather help the contractors and subcontractors I represent continue to make money and avoid the stress, expense and monetary cost of litigation through contract review and mediation where possible. This is for one simple reason, mediation works.

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Christopher Hill is a LEED AP and construction attorney in Richmond, VA. Chris is a member of Virginia’s Legal Elite in Construction Law and authors the Construction Law Musings blog. Please feel free to contact Chris through his blog or on Twitter at @constructionlaw.

Please check out Chris’s Construction Law Musings Blog for more on Virginia construction law and other topics.

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