Arbitration v. Litigation-Which is More Effective?

  Last week I arbitrated a case over Zoom.  The hearing lasted one hour.  The Claimant, a construction company, was owed high five figures.  They did not have an attorney’s fee clause in their contract. The Respondent never answered the arbitration demand and did not appear. The Claimant presented his damages and told me the history of the project.    I awarded him the full value of his claim plus interest and costs because they were provided for in his contract. What if this had gone to litigation?   He would have filed a lawsuit and paid for service on the defendant.   He would have had to wait twenty days for him to file an answer. He would have to file a request for default. He would have to file a motion for default judgment. Even if the claim were for a “sum certain,” the court would probably require a hearing on damages. He will have to appear at the hearing and testify as to his damages.    If the court is busy that day, he may have to wait around for hours. He will have to wai


  As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contrac

When You Shouldn't Mediate Your Construction Dispute

Photo by  Cytonn Photography  on  Unsplash Mediation is a wonderful form of dispute resolution.  It allows the parties to craft their own resolution to a conflict.  It frequently repairs relationships.  Parties tend to comply more with mediated settlements.   That said, there are definitely times when you should not mediate. As a refresher, mediation is an alternative form of dispute resolution where the parties attempt to negotiate a settlement of their dispute with the aid of a third-party, neutral mediator.   It is a confidential process.   If the parties come to an agreement, that agreement becomes an enforceable contract.   Since parties have control over whether they come to an agreement, they are much more likely to comply with a mediated settlement than a judgment. So, when not to mediate? When the other side refuses. Mediation is supposed to be a voluntary process.   The parties are supposed to attend a mediation session in good faith.   There is no point in wasting ever

What if the Debate Were Moderated by a Trained Arbitrator/Mediator?

I am guessing like the rest of you, I am still reeling from last night’s presidential debate.    I was so tense during the whole thing that I felt as if I had been through a horrifying experience. How could that have happened?  Trump came in like a bulldozer and just kept stepping on the gas.  Sadly, Biden did not seem to know how to deal with this attack.  As Dana Bash on CNN stated, “It was a shit show!” I couldn’t help imagining how I, with my arbitration/mediation skills, could have moderated the debate, which may have resulted in a very different outcome. State the Rules and Control the Process. In every mediation and arbitration, I remind the parties that it is my job to control the process.  They provide the evidence and information, but when it comes to procedure, I am the boss. So, knowing Trump’s track record, I would have sternly reminded the parties of their prior agreement to the debate format. “You will each have two  uninterrupted  minutes to respond to the questions.”  

Why You Should Mediate and/or Arbitrate Your Construction Case

As a result of the pandemic, the courts have a terrible backlog of cases, and parties who are trying to resolve disputes will wait months, if not years to see a resolution of their cases. The courts in Massachusetts have been doing a fantastic job of handling the issues raised by Covid-19, but there has been an unpreventable delay in processing cases. Mediation and arbitration have always been effective ways of resolving conflicts. Now, more than ever, parties should consider avoiding lawsuits and hiring an independent mediator or arbitrator to bring finality to their disputes.  What is the difference between mediation and arbitration?  Mediation is a voluntary process whereby the parties try to negotiate their dispute with the aid of a third-party neutral. The mediator has received training in trying to facilitate a resolution. The advantages of mediation are numerous. It is a voluntary process and the proceedings are confidential. If the parties arrive at a resolution of their disput

Why You Need a Lawyer to Review Your Home Improvement Contract

The economy is good.  Home improvement contractors are busy, and homeowners are finally undertaking those renovation projects that they postponed when times were bad.   You’ve done your research and found a great contractor.  Everyone is excited to start the job.  Perhaps you glance at the contract, and it seems fine.  Why hire a lawyer to review your contract? It always astounds me when homeowners undertake six-figure projects without having a lawyer review the contract.  My rule of thumb is simple.  Always have an attorney look over your agreement unless it’s for an amount of money that you are willing to lose. Honestly, most contractors (and I represent many, many of them) get their contracts from the internet.  They include standard clauses that are required by state law.  They may have had an attorney review the contract, but that attorney is working for them , and is not representing your best interest. A contract is a “meeting of the minds.”  It is a way to establish e

What to Do When Subcontractors and Suppliers Ask the Owner for Payment

When owners discover that their contractor has not paid subcontractors and suppliers, anxiety immediately sets in.  Contractors who are not adept at running their businesses end up with cash flow problems and operate on credit.  The situation then catches up with them and they stop making payments.  Suddenly the owner finds himself being contacted by subcontractors and suppliers who are demanding payment.  The law in Massachusetts is clear; a subcontractor or supplier can only collect against an owner if it records a properly perfected mechanic’s lien.  Then he can only expect payment to the extent that money is owed to the contractor at the time the lien is filed.  That said, the owner has the right to finish the job.  If there are no funds left, the subcontractor or supplier can only go after the general contractor for payment. Mechanic’s liens are complicated.  They consist of two documents: a Notice of Contract and Statement of Account.  After filing these documents, th