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provision should include a specific process for mediator selection
to try to avoid disputes over who the mediator will be for the
mediation. It should also provide that mediation should be held in
the same city or county where the project is located, and should
provide that the parties will evenly split the mediator fees. It is also
important that the mediation contract provision provide that any
agreements reached in mediation shall be enforceable as settlement
agreements in any court of competent jurisdiction so that
settlements reached in mediation are binding and enforceable. In
addition, it is recommended that the contract provision allow for
suits to be filed prior to completion of mediation if necessary to
perfect mechanic’s lien or bond claims, but that the parties agree
that such proceedings shall be stayed pending completion of the
required mediation.
Conclusion
If the project level meeting, the executive level meeting and mediation
are all unsuccessful in resolving a dispute, then the next step
would appropriately be to resort to litigation in court, or arbitration
if the parties have agreed in the contract to require arbitration
of disputes in lieu of litigation.
While the type of stepped dispute resolution process described
in this article is likely to result in faster and less expensive resolution
of many disputes without the need for litigation or arbitration,
disputes that remain unresolved after going through such
a process are likely to be the type of dispute that truly needs the
involvement of a judge, jury or arbitrator, and for which the time,
effort and expense of litigation or arbitration may be justified.
However, most disputes are not of that type, and requiring in the
construction contract that the parties engage in a stepped dispute
resolution process is likely to result in faster and less expensive
resolution of many disputes, permitting the parties to focus their
efforts on project completion and profitability
rather than protracted and expensive
litigation or arbitration. t
Ryan Maloney is a partner at Jimerson
Birr, P.A., and is board certified in
construction law by the Florida Bar.
He may be reached at 904-389-0050 or
rmaloney@jimersonfirm.com.
CONSTRUCTION LAW
A face-to-face meeting at the project level can sometimes lead to
resolution of a dispute that emails or letter writing simply cannot epicfail/123RF
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