Most construction contracts contain mediation clauses, or other dispute resolution clause, setting forth in advance the manner in which disagreements regarding the contract will be addressed. Maine’s Home Construction Contracts Act requires, at a minimum, a statement allowing the parties the option of adopting a method for resolving contract disputes without the time, cost, expense, and uncertainty that comes with litigation. Typically, the statement sets forth a choice between arbitration or mediation. Most standard form construction contracts also contain dispute resolution provisions.
In construction cases, many disagreements do not focus on complex legal issues; rather, they involve such issues as workmanship, delay, cost, and strong differences of opinion and expectations. Especially in residential cases, the parties tend to be emotionally charged and frustrated. A well-trained mediator can be a productive neutral force between homeowners, who do not take lightly their investment in a significant asset (their home), and contractors, who do not appreciate their workmanship being called into question. Both parties tend to want to put the matter behind them; a properly run mediation session can drive them toward this common goal.
Disputes between contractors and their suppliers or subs can also be detrimental in a business sense. In addition to the cost, delay, and bad feelings litigation can foster, important business relationships between the parties can be put at risk. Maine is a small state. A good mediator can help the parties mend fences so that they can continue to support each other in the close-knit Maine construction industry.
When selecting a mediator to assist with your clients’ construction disputes, an attorney with a strong background in all avenues of construction litigation is advisable. An experienced construction mediator can more efficiently prepare for the mediation without spending time (and your money) learning the basic construction fundamentals. In addition, an attorney who has successfully handled several construction cases over a period of many years can offer insight as to what a court may do with a particular legal position, and/or what obstacles the parties and their lawyers may face at trial.
Whether there is a pre-litigation mediation requirement, or a requirement under Rule 16 of the Maine Rules of Court, mediation with a competent and trained mediator can be a powerful tool in construction dispute resolution. After a successful mediation, the parties are able to move on, without the uncertainties and expense of protracted litigation. Even when a mediation session does not completely resolve a dispute, it can often narrow the issues and/or partially bridge certain gaps in the parties’ positions and expectations, hopefully making the matter ripe for settlement down the road.