The construction industry has proved adaptable over the course of the pandemic — owners and general and trade contractors have worked closely to ensure that work continued, while keeping workers safe and complying with the various government-ordered and -recommended practices intended to slow the spread of COVID-19. By now, most owners and contractors are well
Strategic Tips That Parties Should Consider When Mediating Disputes
Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have
Three Tips for Owners and Contractors to Improve Their Odds of Success in 2021
While all of us begin 2021 still confronting the challenge of COVID-19, construction project owners face particular pandemic-related issues in their industry, including the need to maintain strict best practices for projects and manage scheduling and labor challenges for existing and new projects. In my latest article for the Daily Journal of Commerce, I
Why Early Mediations Often Fail, and Possible Remedies
Unlike 20 years ago, when a mediation – a commonly used route for resolving disputes in the construction claims process – was typically held close to the trial date, today the prospect of an early settlement can lead to the parties often seeking multiple mediation sessions over the course of a dispute. Additionally, construction and
When to Have the Hard Talk About Setting Liquidated Damages
In my latest column for the Daily Journal of Commerce, I look at the concept of liquidated damages – in my experience one of the top five heavily negotiated (and litigated) clauses in a construction contract. Because a project owner’s potential delay damages are often difficult to determine with certainty at the beginning of
Allocate Payments Clearly to Minimize Construction Disputes
In an ideal world, a contractor performs a portion of the work on a project as provided for in a construction contract, the owner pays the contractor an installment payment for that portion of the work, and the parties continue similarly until the work is finished. However, many factors can upset the equation – changes
When to Prepare for Project Disputes? Always.
Originally published as an Op-Ed in the Oregon Daily Journal of Commerce on June 19, 2020.
Whether you are an owner, contractor, or design professional, construction disputes are, unfortunately, inevitable. Below are some tips to avoid potential pitfalls and help resolve disputes as efficiently as possible, whether before or after formal litigation (or arbitration) commences.
New Oregon Law Complicates Retainage on Construction Projects
If you do not follow the Oregon legislature closely, you may have missed a new law, which went into effect January 1, 2020, that impacts the treatment of retainage on private and public construction projects over $500,000.
For private and public construction contracts entered into on or after January 1, 2020 that include a contract
Can (or Should) My Project Continue During the Shutdown?
Several weeks have passed since Governor Brown formally ordered all Oregonians to “Stay Home, Save Lives,” and owners, project designers, and contractors have all had the opportunity to absorb its initial impacts. While many stakeholders were initially relieved that construction projects in Oregon could apparently continue—subject to the various social distancing and travel restrictions described
Your Contract Might Not Be Ironclad: A Primer on Waiver-by-Conduct
Parties involved in a construction project can expect to spend much energy and effort to finalize the terms and conditions of a contract. Although those terms usually carry great weight in any contract dispute, of equal or greater importance can be the parties’ actions and course of dealing during construction. A lack of strict adherence