Construction Law Musings: You Have Choices (Litigation Versus Mediation)

Construction Law Musings: You Have Choices (Litigation Versus Mediation)

As I sit here thinking about an impending trial in the Goochland County General District Court, it hit me that I also serve as a mediator in that court from time to time. Coincidentally, I will be “wearing both hats” (litigator and mediator) this week on back to back days. It will be interesting to have to switch roles so quickly on back to back days.

While I don’t have the results of this thought experiment as I sit here typing this post, the timeline does bring into focus the two possible avenues to resolve a dispute. Neither is perfect and either works in the proper situation. Both lend a final “result” and closure to the dispute, they just each do so in a different manner and with a different role for me, the construction attorney/construction mediator.

Litigation on the one hand involves you and your lawyer going to battle for what you believe to be the proper side of a dispute. This could be a subcontractor that feels it should have been paid and chooses to sue to enforce its construction contract. It could be a general contractor that is on the other side of such a suit and that must defend despite feeling that it has been dragged into court against its will by a party that it feels did a poor job or just isn’t owed any money. It could be an owner seeking to have a mechanic’s lien released. Regardless of the situation, the lawyer and client charge into the breach armed with the tools of a construction (or any other) litigator’s trade and present what they believe to be the truth to a judge that renders a final decision based upon what the judge sees during the trial (which, due to the rules of evidence and other procedural rules, may or may not be everything that you feel he or she needs to see).

Mediation on the other hand is a purely voluntary and confidential process where the parties, usually accompanied by counsel, present their cases in some fashion to a third party with no dog in the fight, the mediator. Both sides get to air whatever grievances (monetary or otherwise) that they wish without the constraints of the rules of evidence or other court processes. The mediator may give his or her thoughts regarding the issues in private if requested, but is generally there to facilitate the parties reaching a mutually agreeable settlement of the dispute. The parties have a bit more control than in court, though the mediation may or may not end up with an agreement.

Of course, these two avenues are not mutually exclusive. Many construction contracts require pre-litigation mediation and many a dispute that starts out in litigation is resolved in a mediation. Having seen the two processes both as a lawyer and as a mediator, I can safely say that most parties to a dispute should take a shot at mediation. However, there are cases that for whatever reasons are not “ripe” for mediation. If the parties to a construction dispute are not going into the mediation process ready to work toward settlement, then mediation simply won’t work.

In short, litigation and mediation are both ways to get a dispute resolved. It is up to you how you want to proceed.

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