Contracting for Faster and Less Expensive Dispute Resolution

A legal opinion published in PileDriver magazine, 2020 Issue #6
by: C. Ryan Maloney, Esq.
Jimerson Birr, P.A.
rmaloney@jimersonfirm.com


A person wearing a suit and tieDescription automatically generated      Disputes are a fact of life on construction projects.  There are just too many variables, unknowns and unpredictable things that can occur during the course of a project that can lead to disagreements and disputes, particularly when significant dollars are at stake.  However, as many in the construction industry know, or come to find out, engaging in litigation or arbitration over disputes can sometimes be so time consuming and expensive that, as the old saying goes, the cure can be worse than the disease. 
Even as a lawyer that specializes in construction litigation and arbitration, sometimes the best advice I can provide to a client is to help them resolve their dispute without having to resort to litigation or arbitration.  One of the ways to try to facilitate that type of resolution is through well-crafted contractual dispute resolution procedures that are required before the parties can engage in litigation or arbitration.  While there may still be certain disputes that just cannot be resolved without going to court or arbitration, effective pre-suit dispute resolution provisions in a construction contract make it more likely that there will be fewer such disputes by requiring the parties to engage in meaningful dispute resolution before resorting to litigation or arbitration.    
Stepped Dispute Resolution
One of the keys to an effective dispute resolution contract provision is to require the parties to meet and attempt to resolve the dispute before they can file a lawsuit or an arbitration.  Therefore, one of the key things that needs to be included in the contract language is that the dispute resolution process needs to be made a mandatory "condition precedent" to the ability of either party to institute legal action or arbitration.  This means that they must engage in the dispute resolution process before filing suit or commencing arbitration, and if they fail to do so, the court or arbitrator will either dismiss or stay the proceedings until the dispute resolution process is completed.  While the parties can mutually agree to dispense with the dispute resolution procedures if they each agree to do so, the contractual condition precedent language prevents one party from unilaterally ignoring the process and going straight to litigation or arbitration without engaging in the required dispute resolution procedures. 
 In order to have a better likelihood of success, the dispute resolution procedures should also be a stepped process, with at least two sets of meetings, with the first being at the project manager level.  The provision should require the respective project managers to meet in person to try to resolve the dispute within a certain number of days after the written submission of a claim or dispute.  Such a face to face meeting at the project level can sometimes leads to resolution of a dispute that emails or letter writing simply cannot. 
Second, if the project level meeting is not successful in resolving the dispute within a certain time frame, such as 30 days after submission of the claim or dispute for example, the next step should be a required in-person meeting at the executive level of the respective companies within another set time period.  The intent with this type of meeting is to move it from the project level participants, who may be very personally invested and whose emotions may run higher, to the executive level where the participants would be less likely to be day to day project participants and may be able to take a more holistic and potentially more objective view of the dispute. 
This should also be a face to face meeting, and generally should not have legal counsel in attendance at the meeting in order to try to facilitate practical negotiations less focused on adversarial legal positions.  Oftentimes, executives may be able to see the bigger picture and have more authority and flexibility to be able to come to a resolution that could not have been reached by the project level participants.
Mandatory Pre-Suit Mediation
If the project level and subsequent executive level meetings are not successful in resolving the dispute after an agreed time period, then the next required step should be mediation.  Mediation should be identified in the contract as a mandatory condition precedent to institution of legal action or arbitration so that mediation has to occur first, unless both parties agree to waive the requirement. 
Mediation is a structured settlement conference managed by a professional and trained mediator whose job it is to work with the parties to try to resolve their dispute.  While the mediator cannot make any rulings or force the parties to resolve their dispute, the mediator will often be an attorney with experience in construction law and special training in dispute resolution who should be able to provide the parties with an outside view on how a judge or arbitrator might view their dispute and can point out significant issues with the parties' respective claims and defenses.  This is particularly true where the parties provide in the contract for the mediation to be administered under the construction industry mediation rules of organizations like the American Arbitration Association ("AAA") or JAMS, which have large lists of mediators specializing in mediating construction industry disputes.  In addition, most states have laws that make what is said or presented during mediation by the parties or mediator completely confidential, and not admissible in court or arbitration, in order to try to encourage frank and open settlement discussions. 
It is recommended that the contract provision requiring mediation incorporate the mediation rules of an organization such as AAA or JAMS to facilitate the mediator selection and the procedures of the mediation.  If not, then the mediation contract provision should include a specific process for mediator selection to try to avoid disputes over who the mediator will be for the mediation.  It should also provide that mediation should be held in the same city or county where the project is located, and should provide that the parties will split evenly the mediator fees.  It is also important that the mediation contract provision provide that any agreements reached in mediation shall be enforceable as settlement agreements in any court of competent jurisdiction so that settlements reached in mediation are binding and enforceable.  In addition, it is recommended that the contract provision allow for suits to be filed prior to completion of mediation if necessary to perfect mechanic's lien or bond claims, but that the parties agree that such proceedings shall be stayed pending completion of the required mediation. 

Conclusion

If the project level meeting, the executive level meeting, and mediation are all unsuccessful in resolving a dispute, then the next step would appropriately be resort to litigation in court, or arbitration if the parties have agreed in the contract to require arbitration of disputes in lieu of litigation.  While the type of stepped dispute resolution process described in this article is likely to result in faster and less expensive resolution of many disputes without the need for litigation or arbitration, disputes that remain unresolved after going through such a process are likely to be the type of dispute that truly needs the involvement of a judge, jury or arbitrator, and for which the time, effort and expense of litigation or arbitration may be justified.  However, most disputes are not of that type, and requiring in the construction contract that the parties engage in a stepped dispute resolution process is likely to result in faster and less expensive resolution of many disputes, permitting the parties to focus their efforts on project completion and profitability rather than protracted and expensive litigation or arbitration.   
 

Posted in PileDriver Magazine.

Construction Career: John Peirce, Peirce Engineering, Inc.

A Unique Perspective from a Multi-faceted Career; John Peirce
by: Lisa Gordon, PileDriver magazine
This Construction Career profile originally appeared in PileDriver magazine, 2019 Issue #6


  
        John Peirce has learned a lot of valuable lessons over his 46 years in civil engineering.

During that time, he's completed a couple thousand projects, mostly designing and building temporary and permanent earth retaining walls to facilitate road and bridge building, cofferdam and foundation construction, and shoring and underpinning of all types.
While working on his Bachelor and Master of Science degrees in geotechnical engineering at Drexel University earned in 1973 and 1978, respectively Peirce landed a co-op position at The Conduit & Foundation Corporation's corporate headquarters in Philadelphia.
"I worked out in the field and got involved in heavy construction," said Peirce, who says that suited him just fine. In the early days of his career, he never wanted to be cooped up in an office.
Following graduation, he was hired on with The Conduit & Foundation Corporation and specialized in highway construction with them for 15 years, before moving on to geotechnical specialty contractor Schnabel Foundation Company.
Peirce stayed with Schnabel a design/build specialty contractor focused on temporary and permanent earth support for 11 years, eight of which were served as branch manager of the Philadelphia office.
In 1992, Peirce co-founded Peirce Engineering with his wife, Beth, and daughter, Jennifer Peirce Brandt, who is also a professional engineer. Later, his son, John another professional engineer joined the company.
By 1997, Peirce was focusing on the family engineering firm full-time.  His diverse professional background and varied experience has served him well.
"I have a unique perspective," he said. "I've done highway work, plant work, utility work, estimating, project managing and I'm a retired surveyor. I was everything from a lowly rod man all the way up to a project manager."


Lessons learned

PileDriver recently caught up with Peirce to talk about his impressive career and some of the key lessons he's aiming to pass along to his children.
From three key mentors over the years, Peirce learned the importance of being familiar with every aspect of a job, staying quiet when he was unsure of his facts and dealing with people fairly...Read More in PileDriver

Posted in PileDriver Magazine.

Pacific Coast Chapter Awards Four Scholarships

December 2, 2019: The PDCA of the Pacific Coast Chapter awarded four $1,500 scholarships this year to the following students:

Seth Myhre  A project engineer at Shimmick for the past three years, Myhre is studying for a degree in mechanical engineering at California State Chico with a GPA of 3.2.
Sam Follett, P.E.  An engineer at Foundation Constructors Inc., Follet is returning to school to get his Masters in geotechnical engineering. In his essay, he says, "My experience working with a deep foundation contractor and my future graduate degree will allow me to design piles that are constructible. I understand the limitations that are presented by site conditions (soil, access, permitting) and necessary equipment to install various types of piles. I will be able to make sure that owners are able to pick foundation options that actually make sense. I will also be able to explain the benefits to owners that come with pile driving compared to other foundation options, such as increased material quality control, the ease of pile testing and ability to test increased amounts of piles at a time, and the schedule benefits compared to other foundation types."
Erick Medina  A full-time college student at Sacramento State University pursing a degree in Construction Management, Medina is in his first year at Sac State. He earned a GPA of 3.3. One of Medina's goals is to be the first person in his family to earn a four-year college degree. He is a hard worker and has learned that teamwork in the workplace is one of the keys to success.
Russell "Teddy" Bruin  One of the 2018 recipients of a PDCA scholarship, Bruin says he appreciated the support provided last year. He successfully completed his first year at Loyola University Chicago, where he is still pursuing a degree in environmental science. He was involved in several extracurricular collegiate activities along with having a solid academic year.


Sam Follett, P.E.

Seth Myhre 

Erick Medina 

Posted in Chapter News.

A Pile of News - December 2019

A Pile of News:
December 2019

A briefing on news and information from the pile driving contractors, associated manufacturers and suppliers and affiliated engineers who comprise the PDCA.
by Matt Bisbee, PDCA
 
Top Stories
Guess who's driving the piles? National news outlets covered the ceremony when officials in Charleston, SC broke ground on a new landmark with a high level of cultural and project significance. The International African American Museum is a $90-million, privately funded project in progress in the historical city. Local contractor Parker Marine promptly delivered the first of many piles to the jobsite where they will drive concrete and steel sheeting. The museum is scheduled to open in 2021.

An understanding of federal regulations impacting wetlands: Minnesota engineering firm Braun Intertec provides a unique resource on their blog. Review this OnDemand Webinar by Daniel DeJoode, Ph.D., who examines regulatory changes to federal environmental policy.

Precedent setting lawsuit? A group is suing a Florida city for imposing what it considers policy that forces contractors with municipal contracts to pay above minimum wage, among other cost prohibitive mandates. Read more. In other Florida regulatory news, Workers Comp rates appear to be headed down again, for the third year in a row.

There are better things they can do: It was encouraging to read this Congressman's commentary, saying a surface transportation reauthorization is the "most important work" for Congress this year; the high-ranking chairman adds "100 year-old bridges" will exacerbate transportation inefficiencies. 

Because puppies are proven click-bait:
A stated core value at Corman Kokosing is "Be a good member of the community." The Annapolis Junction, MD contractor dedicated a heartwarming Facebook post to staff member Karen Matassa-Countiss who lives by that motto. And, she appears to volunteer herself for a second 40-hour week on her expansive dog rescuing efforts. Great job, Karen!
 
Association and Chapters
The Pope, Santa and Ron Jeremy walked up to the bar at a PDCA event in California... Plan to attend the PDCA of the Pacific Coast Holiday Luncheon on December 6th at Hotel Mac in Richmond, CA. See more details and RSVP here. You are encouraged to bring a dirty joke!

Congratulations! Citadel Cadet Hunter Hutton wins the Mac Nigels Scholarship! PDCA of South Carolina Chapter recognized him at the November dinner meeting; Scott Nigels presented the plaque and $2,000. 

The PDCA of the Gulf Coast Chapter hosted the Engineers Conference; attendees heard seven presentations including one from Chad Held of Eustis Engineering, who gave a scientific study of driven pile set-up in soft clay.


Mark your 2020 calendars:
Coming Jan. 17, 2020, the PDCA of South Carolina Chapter will host the Annual Oyster Roast at Palmetto Pile Driving. On Feb. 7, the Northeast Florida Chapter will host an organizational luncheon. And on March 11-13, PDCA and Pile Dynamics, Inc. present DFDTA in Orlando. More details and events can be found on the PDCA Upcoming Events Page.


Avoid the malls! Shop The PDCA Store anytime for unique, logo merchandise to give at your next holiday gathering. In doing so, you are supporting the driven pile industry. Have a safe and happy season!
 
Recognitions
AET in St. Paul, MN promotes Patrick Barnhouse and Clint Grzywinski. Geo-Technology Associates, Inc. promotes Tim Fowler to associate in Frederick, MD. Golder Associates, Inc. names Dr. Jiun-Yih Chen senior geotechnical consultant in Houston, Hunter Sartain practice leader in Atlanta. Group Industries in Baton Rouge promotes Eric Fauveau to project estimator. Hardesty & Hanover announces Victor Minerva joins Rye, NY as director of planning. Infrastructure Consulting and Engineering, LLC in Columbia, SC names Jim Kupferer VP business development. GEOKON in Lebanon, NH announces Nolan Seles as regional sales engineer and Trevor Madden as sales associate. Charleston, SC-based Insight Group welcomes Nick Lacour as well as these unique, new mobile labs.

More: ECS Limited opens new Cincinnati office, names John Lindsey VP/branch manager and Mark Carlson chief engineer. McCarthy Houston welcomes new business development director Jonathan Schmaltz and general superintendent Condon Verble. PND Engineers adds accountant Sarah Boeckman, engineer Levi Overbeck in Anchorage and EIT Caitlan Richard in Seattle. Shannon & Wilson's Portland office names new staff: Christine Maher, Megan Worthington. Terracon reorganizes national leadership, elevates Bob Cords, David Lipka, Mohammed Nasim, R. Sean Williams. Minnesota's Veit & Company welcomes Stacy Finley to leadership in business development. Finally, congrats to Judy, who celebrates 45 years of keeping the trains moving at LG Barcus & Sons in Kansas City.
Dewberry news: firm named 2019 employer of the year by the Central Florida Women's Transportation Seminar and ENR Southeast Design Firm of the Year

GRL Engineers, Inc. husband and wife team Scott Webster, P.E. and Karen Webster, P.E. earn the Outstanding Civil Engineering Achievement Award for work on a North Carolina bridge; they'll be honored at a gala in D.C.

GZA
's Jay Womack  named Outstanding Citizen Volunteer of the Year by the Illinois Assn. of Park Districts!


i+iconUSA
's Mike Trettel named to Pittsburgh Magazine's 40 Under 40.


S&ME
Charleston, SC VP Melvin C. Williams receives ACEC Community Service Award and he joins the   Furman University Riley Institute 14th class of Diversity Leaders Initiative (DLI)


Acquisitions: Dewberry Engineers
acquires California-based engineering firm Drake Haglan and Associates. Southern Earth Sciences Inc. acquires Quality Engineering Services. Golder & Associates opens new office in York, Maine. GeoEngineers Inc. launches Boston-based, national Construction Design Group for heavy civil contractors; Franklin Grynkewicz and Steve Spencer will lead the team.


Anniversaries: Shannon & Wilson
of Seattle is 65, Continental Construction Co. in Memphis is 50!
 
Newsmakers
Albany Times Union in NY profiles a C.D. Perry, LLC riverfront restoration project.

American Journal of Transportation
updates on a Weeks Marine dredging project in Virginia.


American Way 
(a magazine in airplane seat pockets) plugs i+iconUSA pier project in St. Pete, FL.


The Astorian
newspaper in Oregon reports on municipal contract awarded to Bergerson Construction.


Bisnow Boston
looks at a big downtown development; Haley & Aldrich was participating engineer.


Business in Edmonton's
November cover is Valard; CEO Barkley Adams and blue trucks prominent. 


CE Magazine
features the Hardesty & Hanover and Cianbro vehicle/rail bridge connecting ME and NH. 


Civil + Structural Engineer Media
talks with PND president Jim Campbell.  


Construction Executive
publishes column by McHugh VP Natalie Perdraza on recruiting strategies. 


Crain's New York Business List
includes Tectonic Engineering & Surveying Consultants.


Deep Foundations magazine
includes photo of Foundation Constructors' Sam Follett at the ballpark.


DJC Oregon
says Christine Miller, Lauren Sherman, Megan Worthington of Shannon & Wilson, Inc. are Women of Vision 2019.


ENR Midwest Top Specialty Contractors
list both Veit & Co. in Minnesota and Aldridge Electric in Chicago.


Fox2Now St. Louis
interviews McCarthy VP Jeff Boyer on building a diverse and inclusive workforce.


Groundbreak Carolinas
reports on Balfour Beatty's Jeannie Daleure for honoring 9/11 heroes.


Mid Atlantic Real Estate Journal
profiles GZA VP Mary Kay Morelli LSRP, great press if you can get it!  


New Orleans 4WWL TV
highlights the Weeks Marine scholarship program, introduces student winner. 


NJ.com
covers a ground-breaking; Linde Griffith strategically places crane for inclusion in cover photo. 


New York Yimby
writes about MRCE's geotechnical and foundation engineering work on NYC's new tallest building outside of Manhatten.


On-Site
construction magazine features Saskatchewan's largest-ever highway project on which two PDCA engineering firms contributed; Golder as geotech lead and a supporting team from EXP.


The Weather Channel
discusses sustainable building with Elizabeth Heider of Skanska USA.


It's like a PDCA Bar Association!
 Crain's Chicago Business lists Dan Rosenberg of McHugh as a notable General Counsel; The Dallas Morning News list says Munsch Hardt is Top Place to Work; Florida Trend says Jimerson Birr is a Best Place to Work.
 
Shaping Our Communities
Balfour Beatty: Jeff Leahy in Raleigh raised $13,770 for The Leukemia & Lymphoma Society Executive Challenge. The Atlanta team raises $82,000 for Make a Wish Georgia at annual golf tourney.

Cape Romain Contractors
in SC recognized for 20 consecutive years of giving to the Dee Norton Child Advocacy Center in Mount Pleasant.


ECS Mid-Atlantic
sponsored the Children's National Hospital Race for Every Child run/walk in Washington, D.C.; it funds hospital programs, medical developments and services.


GeoEngineers
is sponsoring Downtown on the Go's Light Up Your Ride in Tacoma, WA, an annual event providing free bicycle lights to improve safety for riders during fall and winter months.


Geotechnology, Inc.
staff in St. Louis participated in trivia night for Paralyzed Veterans of America; also held an in-office bags tournament to support United Way.


Golder
's St. Louis office collected more than 1,200 food items for the Circle of Concern Food Pantry.


GTA
's John Moscati in Charlotte took on the XTreme Hike in The Iron Mountains of Virginia. Participants raised over $350,000 for the Cystic Fibrosis Foundation.


Manson Construction news
: Seattle office participates in hunger relief; Beaumont office sponsored Touch a Truck at local children's museum.


MRCE News:
partnered with Grove City School of Engineering by presenting to nearly 100 students.  Also, Teresa Sandiford and Anthony DeVito guest lectured at Columbia University, delivering "Principles of Construction Techniques" for grad students.


Soil Consultants, Inc.,
in Charleston, SC sponsored Southern Soiree benefitting Blessed Sacrament School.
 
The Rest of the Story
They literally "took the show on the road": Crews from Key Constructors LLC starred in a "Facebook Live series" hosted by the Mississippi Department of Transportation. MDOT produced and Key shared regular live shots providing construction updates for area drivers to social media followers. Congrats to Key for the early completion of a major Interstate 20 improvement near Jackson.

A future archeological treasure?
Kudos to the creative, sustainable visionaries at American Engineering Testing, Inc. in St. Paul, MN. As part of a corporate office expansion, AET enlarged the parking lot, which required overhauling the stormwater system to comply with the NPDES permit. To achieve a suitable underground infiltration system and also support an above ground parking surface, they used bushels (correct unit of measurement?) of tire shreds as the aggregate. That's creative engineering!


"Imitation is the sincerest form of flattery:"
It's a famous quote and apparently a Halloween '19 theme for GA PDCA members. Nearly the entire staff at C.A. Murren & Sons in Grayson, GA dressed as Jan Heck from the front office; the Facebook post is a sweet message about the valued clerk. Down the road in Atlanta, Balfour Beatty staff chose Superintendent Chuck Howard as the preferred costume.
 
If your company has news to share with the pile driving industry, please email matt@piledrivers.org. We look forward to distributing your unique stories, personnel changes, charitable efforts and recognitions. Remember to include the hashtag #PDCADriven on all of your driven pile-related social media posts se we can follow along and share.
 
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Posted in A Pile of News PDCA Monthly e-newsletter.