Construction Law Blog

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A New AAA Study Confirms that Arbitration is Faster to Resolution Than Court – And the Difference Can be Assessed Monetarily

Date: June 1, 2017  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Alternative Dispute Resolution (ADR), Construction News and Notes, Memorable Quotes, Rants and Raves, Delay Claims, Damages, Claims  /  Keywords: A New AAA Study Confirms that Arbitration is Faster to Resolution Than Court – And the Difference Can be Assessed Monetarily 1  /  Comments (0)

There has been a perception among some litigators that arbitration is more expensive than court due to several factors.  Among them:

  • The “upfront” costs are higher in that filing fees for arbitration exceed those in court.  Arbitrators are paid, whether hourly or a flat rate, and the three arbitration panels can become very expensive.
  • Some arbitration clauses preserve statutory discovery rights, basically defeating the advantage of a simplified arbitration process.  Discovery wars are extremely expensive.  Depositions are the most costly of discovery, and in arbitration, as opposed to court, depositions are limited or do not exist.
  • Some arbitration clauses integrate the statutory rules of civil procedure, making arbitration almost equivalent to litigation.  These types of clauses do the parties no favors

Is Reversing an Arbitration Award Going to Become Easier in the Future?[i]

Date: May 10, 2017  /  Author: John P. Ahlers  /  Categories: Claims, Rants and Raves, Construction News and Notes, Contracting, Alternative Dispute Resolution (ADR)  /  Keywords: Is Reversing an Arbitration Award Going to Become Easier in the Future? 2  /  Comments (0)

Generally, contractors choose arbitration because it is a cost-effective method of dispute resolution, and primarily because an award issued in arbitration is final.  Vacating an arbitration award is only permitted on very narrow grounds.  A party must demonstrate that the award was procured by corruption, fraud, or undue means, or that an arbitrator exceeded his/her power (very high burdens).  Arbitration rules in other states are similar to the Washington statute.  Stated simply, it is very difficult to reverse an arbitration award—or is it?  These two cases do not indicate a trend but do remind us that an arbitrator’s power is limited to that power granted to him/her by contract.

The Prompt Payment Act Obligation is Not Triggered When the Owner Holds Less Retention from the General Contractor

Date: October 20, 2016  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Government Contracts, Alternative Dispute Resolution (ADR), Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Claims  /  Keywords: The Prompt Payment Act Obligation is Not Triggered When the Owner Holds Less Retention from the General Contractor 3  /  Comments (0)

Most states have laws known as “prompt payment” statutes which govern the timing of payments on public works projects from project owners to general contractors, and from general contractors to subcontractors.  The purpose of these statutes is to ensure that contractors and subcontractors who may have less leverage than the project owners and prime contractors, respectively, are paid for their work on a timely basis.

Big Bertha: Contractor Prevails On Differing Site Conditions Issue - Now What?

Date: May 27, 2015  /  Author: John P. Ahlers  /  Categories: Alternative Dispute Resolution (ADR), Construction News and Notes, Delay Claims, Claims  /  Comments (0)

Early this month, the three-member Board appointed by the Washington State Department of Transportation (“WSDOT”) and Seattle Tunnel Partners (“STP”) to assist in resolving contractual disputes on the Alaskan Way Viaduct Replacement Project issued its latest recommendation.  The question before the Board was narrow  in  scope:   was  an  eight-inch  steel well-casing within the work zone adequately identified in the contract?  The Board determined that the well-casing was clearly identified in the contract, but the contract documents did not clearly identify that the casing was made of steel.  The DRB’s recommendation was that the contractor encountered a differing site condition.

Why Do Construction Disputes Cost So Much To Resolve?

Date: April 14, 2015  /  Author: John P. Ahlers  /  Categories: Construction Discovery, Out of the Ordinary, Settlements/Releases, Alternative Dispute Resolution (ADR), Rants and Raves, Claims  /  Comments (0)

Litigating and arbitrating construction cases is extremely expensive.  By the time the procedural rules are complied with and the discovery process is done, even the smallest of construction cases with the most cost-conscious legal counsel will run $300,000.  Larger construction cases are vastly more costly.  For example, the 2012 King County Bright Water Tunneling dispute (VPFK v. King County) cost taxpayers over $10 million in attorneys’ fees alone. For more information, read our blog article, King County Scores a $155.8 Million Victory Against Contractor on Brightwater Tunneling Project.

Is Arbitration Truly Confidential?

Date: April 2, 2015  /  Author: John P. Ahlers  /  Categories: Construction Discovery, Out of the Ordinary, Alternative Dispute Resolution (ADR), Rants and Raves  /  Comments (0)

A recent Southern District of New York ruling addressed the issue of public access to arbitration awards.  The case involved a motion to confirm an arbitration award and a joint request from the parties to “seal” various documents relating to the arbitration.  Sealing of court records prevents public access and ensures the proceedings remain confidential. 

Use of Dispute Review Boards as an Alternative to Arbitration

Date: December 18, 2014  /  Author: John P. Ahlers  /  Categories: Alternative Dispute Resolution (ADR), Contracting, Construction News and Notes  /  Comments (0)

Dispute Review Boards ("DRB") - sometimes referred to as Dispute Resolution Boards - are creations of the construction industry. DRBs were developed by predominantly non-lawyer construction professionals who were dissatisfied with the use of arbitration and litigation to resolve construction disputes. 

Arbitration Should Not Be "Warmed-Over" Litigation

Date: December 9, 2014  /  Author: John P. Ahlers  /  Categories: Rants and Raves, Alternative Dispute Resolution (ADR)  /  Comments (0)

This blog article is another rant about how to improve arbitration.  For more on the subject, read our blog articles "Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive" - Part I and Part II

Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive - Part II

Date: July 10, 2014  /  Author: John P. Ahlers  /  Categories: Alternative Dispute Resolution (ADR), Construction News and Notes, Rants and Raves, Claims  /  Comments (0)

This post is Part II of our discussion on resolving construction disputes less expensively and more efficiently. Read Part I here. Arbitration is a form of dispute resolution that is particularly well suited to construction disputes.  Here are some tips on how lawyers and stakeholders can make things move quicker in arbitration:

Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive - Part I

Date: July 8, 2014  /  Author: John P. Ahlers  /  Categories: Alternative Dispute Resolution (ADR), Construction News and Notes, Rants and Raves, Claims  /  Comments (0)

This post is the first of two blogs about making the dispute resolution process more efficient in construction-related matters. In our view, construction is well suited to streamlining the resolution process, particularly when experienced lawyers and judges / arbitrators are involved.