Whoever coined the phrase “justice delayed is justice denied” was certainly not contemplating a global pandemic. And yet, that is precisely what litigants in most state and federal courts are currently facing. In some circuits, even civil bench trials will not begin again until 2023.
Arbitration
Consequential Damages Reign Supreme, But Cannot be Included in a Construction Lien
In the recent case of TSP Services v National-Standard, LLC (Court of Appeals, Sept. 2019), the Michigan appellate court affirmed an arbitrator’s award of consequential damages to a contractor for lost profits, but rejected the arbitrator’s ruling that such damages...
Will There Be Discovery in Arbitration?
By Stephen A. Hilger, Esq. This is Part 9 in a 20-part series of articles dealing with issues of arbitration in the construction industry. One of the most expensive components of litigation is discovery. Discovery in court can go on seemingly interminably with...
Changes to the 2017 AIA A201 General Conditions: Sections 1.6.1 and 1.6.2 Regarding Notice
By Stephen A. Hilger, Esq. This is part 3 of a 15-part series on the changes to the AIA A201 General Conditions. This part deals with the Notice sections 1.6.1 and 1.6.2. Notice method provisions were formerly in section 13.3 of...
What Rules Govern Your Arbitration?
By Stephen A. Hilger, Esq. This is Part 8 in a 20-part series of blogs dealing with issues of arbitration in the construction industry. Once you are in arbitration, the rules of engagement do not mysteriously appear. Since arbitration is a creature of contract, you...
How to Choose an Arbitrator for Your Case
Choosing an arbitrator is considerably more art than science. People will tell you they want an arbitrator who is fair and who will listen to the case with an open mind. The reality is, litigants want an arbitrator who will most likely view the world the way they do and will attempt to choose an arbitrator who is a most likely candidate in this regard. To accomplish this, there are several ways to select an arbitrator.
How Many Arbitrators Should You Request?
By Stephen A. Hilger, Esq. This is Part 6 in a 20-part series of blogs dealing with issues of arbitration in the construction industry. Once in arbitration, you will come to the crossroads of a decision on how many arbitrators to use. Should you use a single...
Should You Use AAA, Private Arbitration, or Some Other Vehicle?
By Stephen A. Hilger, Esq. This is Part 5 in a 20-part series of blogs dealing with issues of arbitration in the construction industry. Once you have made the decision to utilize arbitration as a dispute resolution mechanism, the next question becomes what vehicle you...
The Enforceability of Prehearing Arbitration Subpoenas
The enforceability of prehearing arbitration subpoenas after CVS Health Corporation, et al vs. Vividus, LLC, fka HM Compounding Services, LLC
By Stephen A. Hilger, Esq.
This is Part 4 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.
Those who have participated in arbitration proceedings understand the difficulty of getting documents from non-parties. For example, in a Contractor – Subcontractor dispute, litigants may want documents from the owner, architect, testing lab, and the like. However, those non-parties may not be connected to the Contractor – Subcontractor arbitration agreement. The litigants can require or request that the arbitrators issue subpoenas, which arbitrators typically do, but what happens when the third-party simply refuses to comply?
Should You Make Meetings of CEOs a Condition to Arbitration?
This is Part 3 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.
Over the last decade, a requirement has slipped into the dispute resolution clauses of many construction contracts requiring the CEOs of the various parties to meet as a condition precedent to any arbitration. If something is a “condition precedent” and the contract uses those specific terms, then the meeting must occur before a party can either demand arbitration or file litigation.
Since the parties negotiate their contract, the question becomes whether this is a prudent requirement to place in the contract. The answer is, in most instances, yes. Often times, the parties’ representatives who are involved in the dispute are not the CEOs of the companies. The CEOs, generally speaking, have cooler heads when it comes to resolving heated disputes. They may be one step removed. Forcing the CEOs to meet and discuss the claim has a general influence on either resolving the disputes or substantially narrowing them.