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 … Continue Reading
In construction projects, experienced owners, contractors, or designers know that disputes will almost invariably arise — even when the parties have the best of intentions. And they understand that detailed contract provisions to resolve those disputes can have major benefits if they are properly drafted to suit the project, parties, and types of dispute most … Continue Reading
The nearly 60 cranes towering over Seattle’s skyline may be a sign of the building boom in the city, but they also could portend a flood of construction claims arising from the projects they help build. Despite the frequency of construction claims, many developers are not familiar with the dispute resolution methods available to them … Continue Reading
The Washington Supreme Court—in Gandee v. LDL Freedom Enterprises, Inc., 176 Wn.2d 598 (2013)—recently examined the validity and enforceability of a contractual arbitration provision and found, under the circumstances, that the clause was “unconscionable” and therefore unenforceable. Although the case did not occur within a construction setting, it nevertheless presents important lessons to consider when drafting, … Continue Reading
The Nevada Supreme Court has answered a question that developers and contractors have been asking for years: can the statutory limitation period for a construction defect action be shortened? The court answered in the affirmative but held that there must be no statute to the contrary and that the reduced limitation period must be reasonable … Continue Reading
There are now 25 states in the U.S. that hold that construction defects are not an “occurrence” and are therefore not covered under commercial general liability policies insuring contractors. Couple this troubling statistic with the ever increasing number of policy exclusions and limitations, and we begin to realize that in many situations the contractor’s insurance … Continue Reading
Before using AIA forms or any other agreement to begin a project, owners should review and revise those forms to ensure that they contain appropriate provisions governing dispute resolution. Otherwise, you may be stuck suing different parties in different forums for the same set of construction and design defects, you may be unable to recover the … Continue Reading
Contributor: Stephen P. Kelly In Broom v. Morgan Stanley DW, Inc., the Washington State Supreme Court held that state statute of limitations did not apply to a contractual arbitration. The arbitrators of an investment-related dispute had dismissed certain claims because plaintiffs failed to bring them before the applicable statutes of limitations lapsed. Analyzing the Washington statute of … Continue Reading
With an increase in the use of arbitration as the preferred method for resolving construction industry disputes has come an increase in concerns with assuring fairness in the process. To this end, one of the recent changes the American Arbitration Association made to the Construction Industry Dispute Resolution Procedures (Including Mediation and Arbitration Rules), was … Continue Reading
