Construction Law Musings: Thoughts you can apply right away in your business/practice

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Construction Law Musings blog
Christopher Hill
Christopher Hill

Chris Hill’s Construction Law Musings  (constructionlawva.com) provides consistently informed perspectives about construction law. His specific legal information relates to Virginia (he is based in Richmond, VA) but the advice here is usually timeless and transcends geography.

Hill makes excellent use of guest posts, a wonderful approach to diversify the content and enhance relationships. As an example, in a recent posting, Josh Johnson, “a friend and partner at Gentry Locke Rakes & Moore, LLP in Roanoke, Virginia”, provided a top-10 list of Hill’s best blog postings, with a bit of tongue-in-cheek fun when Johnson picked another of his own guest postings as the number one of the top 10 listing. (All of the postings are indeed worthy, and possibly Johnson’s own blogs will be nominated for the 2014 Best Construction Blog competition.)

I especially enjoyed reading Hill’s posting about what to do when you are called to testify. This is succinct advice, but really useful because most of us rarely if ever experience the process.

(The closest I got to the “stand” was when, after my business was sued, I needed to attend a disposition in preparation for an injunction hearing. My own lawyer briefed me effectively on how to answer the questions, and I must have done things right, because the judge dismissed the injunction claim and awarded costs to my business.)

(This set us up well for the next stage in the litigation process, mediation, where it didn’t take long for the matter to be settled, not surprisingly in my favor. While I think Hill will agree that it is wise to stay out of court if you can, “winning” (in quotes because the ordeal still cost $20,000) can have its advantages, especially in scaring off trouble-makers who might want to try something stupid in the future.)

Hill’s obvervations about the value of mediation are quite relevant in this context:

As those of you who read Musings regularly know, I became certified as a mediator by the Virginia Supreme Court last year.  I went through this training, and the mentor-ship process (as a “mentee”), because I firmly believe that mediation is a great process by which the parties can resolve their construction (and other) disputes in a creative and business responsible manner.  I also believe that mediation is a worthwhile process even when it does not lead to settlement.  Through this voluntary (as opposed to mandatory as required by some contracts) process, the parties can safely air their disputes and grievances and get to the heart of a matter without the fear that their words will be used against them at a later time.

In the safe haven of mediation, the two sides can, with the help of the mediator, explore creative and business savvy resolutions to a dispute that a court or arbitrator could not reach due to court rules and the fact that a judge or arbitrator can only pick a side and render a judgment.  Through mediation the parties can often come to a solution that renders closure and a sense that they had control over the solution and the resolution in a way that litigation cannot.

My experience performing mediations through the Chesterfield County court system has done nothing to change my view.  During these mediations, I am consistently amazed at the non-monetary issues that are truly driving these people to court.  Looking at the facts and feelings of the parties from a neutral perspective (as opposed to the advocate’s perspective used in other areas of my construction practice) always gives me insight into the psychology and the practical desires of parties to (as a general rule) get to the bottom of a dispute and reach a resolution that is imperfect but one of their own choosing.

Construction Law Musings, indeed, is a worthy blog. Best Construction Blog voting continues to April 1.  You can vote here.

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