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When reviewing a proposed design or construction contract, the responding party will often do a cursory check to see whether the contract proposes arbitration or litigation for dispute resolution. So long as the proposed method generally aligns with that party’s preferences, it will not look further at the specifics of the proposed process. For the uninitiated, this can lead to surprises when a dispute arises, especially when it comes to issues like whether the arbitration will be held before a single arbitrator or a panel of arbitrators, the rules that will apply to the arbitration, and the scope of discovery.

Construction and design attorneys, on the other hand, spend many working hours (and sometimes nonworking hours) contemplating these exact issues. I have developed a checklist of items that I advise my clients to consider in their arbitration provisions. The combined goal of these considerations is eliminating surprises if a dispute arises and balancing efficiency with the desire for a fair process. Typically, that checklist includes the following topics:

  • Rules applicable to the arbitration
  • Single arbitrator or panel of arbitrators?
  • Scope of discovery
  • Maximizing opportunity for resolution in a single proceeding

The full article, including details on each of these topics can be found at What Parties Ought To Consider When Considering Arbitration Provisions | Stoel Rives LLP.

This article was originally published in by the Daily Journal of Commerce on April 20, 2023.

Aerial Top Down of Construction

In a world of pure cooperation, if the owner of a construction project or a contractor causes a problem, the responsible party would admit fault and make amends—rendering the negotiation of a construction contract unnecessary. In our less than ideal world, owners and contractors have adverse interests, the party at fault is not always clear…

Originally published as an Op-Ed by the Oregon Daily Journal of Commerce on December 15, 2022.

A common feature of construction contracts is a clause requiring formal mediation of disputes relating to the project. Sometimes the clause is aspirational, merely “requiring” that the parties consider mediation. Other times, however, the clause is designed as a binding…

Close - up construction contract with pen and architectural roll

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If a contractor cannot meet deadlines on a construction project or a subcontractor pulls out of a new project bid in order to pursue a more attractive opportunity, the project owner and/or prime contractor face potentially significant damages, which can include corrective work, costs of completion or substitute performance, and delay. In my latest column…

The importance of carefully drafting, and following, a construction contract’s termination provisions was made clear for project owners and contractors by a recent Washington Supreme Court decision, Conway Construction Co. v. City of Puyallup. The city contracted with Conway to build a major roadway, but when the city lost confidence in Conway’s work, it issued…