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Winchester, VA 22601
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Construction Contract: Mediation/Trial Choices

Construction in our COVID world of delayed production/supply chain deliveries can cause potential breach of contract issues. Here are some issues we are seeing:

Failure to meet deadlines in the contract; failure to have change orders signed; and failure to hire contractors who are properly licensed in Virginia.

I have tried a number of Construction Contract issues in court for clients, both homeowners and commercial property owners. Although I am always willing to try any case I accept, I discuss mediation with my clients as well. In mediation, both parties must be willing to compromise.

If a client is not willing to compromise, mediation is not an option. However, if a client is willing to compromise, mediation gives them more control over the outcome than a trial does and provides a faster resolution. In mediation, both parties (or their attorneys) prepare a confidential memorandum for the mediator to read ahead of the mediation date. On the date the mediation is scheduled, the mediator meets briefly with both parties (and their attorneys), then the parties separate into different rooms and the mediator goes back and forth trying to craft a settlement.

The mediator points out the flaws in each party’s case and makes compromise suggestions. The mediator will go back and forth between the two parties to fine-tune a possible settlement.

One client, who owned a commercial property, was not happy with the framing work and then discovered that the subcontractor hired to do the electrical work was not licensed. This became evident when a piece of equipment plugged into a baseboard outlet blew a fuse and I was called to visit the site. I brought a photographer with me to document the problems, who, fortunately (!) was wearing tennis shoes when she stepped on a hot wire coming through the floor which only sizzled without hurting her.

This general contractor was willing to mediate, and we crafted a satisfactory contract termination and payment to my client.

The mediators I use are retired judges. They have seen everything and are in a position to be creative in their suggestions. All my mediations have resulted in a settlement and payment to my client. If the parties can’t come to an agreement at the conclusion of mediation, they can proceed to trial, always a more expensive and time-consuming process.

Ms. Fine practices in the following areas: business lawestate planningequine lawreal estate law, or civil litigation. Please reach out if you need assistance.