Roger Harper, Principal, Creative Dispute Resolutions, and Chris Dunn, Attorney, Walter Lansden Dortch & Davis LLP, know legal disputes can be expensive and time consuming. Their session on alternative dispute resolution detailed the benefits of lesser-known options such as arbitration and mediation.
“Concurrent with the slowdown in new development, construction claims and litigation are increasing,” said Harper, who serves on the Panel of Commercial Neutrals with the American Arbitration Association. “The prospect of future work is generally not available as means to resolve claims. Many contracts only have cursory or insufficient provisions for claim resolution.”
Dunn noted that advance planning can help head off problems before they crop up. “Think of options at the contract stage, before people’s blood is boiling,” he said.
“Whether you want to or not end up in litigation, you need to be thinking about it at the contract stage.”
Dunn likened arbitration to a private version of court litigation. “Arbitration is a formal procedure including submission of briefs, limited witness testimony and presentation by counsel,” he said. He noted that arbitration was typically faster and less costly than litigation, and arbitrators have specific industry expertise, while a judge may not.
On the flipside, Harper said mediation is a facilitated discussion between the parties of a dispute to reach an agreement on all or part of the issues. “A third-party neutral (mediator) works with each party and their counsel either separately or as a group to facilitate an agreement,” he said. It’s an informal process focused on settlement rather than determining fault and assessing damage.” According to Harper, advantages to mediation include that it’s relatively cheap and quick, and is generally completed in a day. It can occur at any point in the process, and the results are confidential.
Harper noted mediation does have some possible disadvantages. “Parties may not be able to reach an agreement, and it may not be suitable for highly complex disputes that might require rulings on issues of law,” he said.
Dunn and Harper recommended that contractors develop alternative dispute resolution clauses for future contracts, maintain awareness of evolving methods and practices of dispute resolution, and periodically evaluate their agreements.