Collaborative Law – the New Trend in Resolution of Construction Litigation Cases?

Most contract or payment disputes that occur in the roofing and construction industry at large get resolved in one of three ways: informal discussion and settlement by the parties; litigation in a court of law; or through arbitration using an agreement created by parties of any number of agencies that manage the process. Lawyers can assist in any of these processes and really are necessary to make sure your rights and future obligations are covered.

In the last few years, a new process has come to prominence in other legal aspects like family and domestic law. Now, there is a push to use it in construction. Collaborative Law is a process where parties use their lawyer and work in a completely open, non-adversarial manner to resolve disputes. Nineteen states have passed legislation enacting the Uniform Collaborative Law Act, and it is pending in five other states.

A main feature of the collaborative law process is the required civility between the parties and the demand for complete openness to discuss all aspects of issues — good and bad.

The collaborative law process offers parties a great deal of control over the dispute resolution process. As with other forms of dispute resolution, the collaborative law process is designed to allow the parties to control the cost, the timing, and the resulting outcome.

Main components of the collaborative law process include:

· Efficiency: Resolution can be reached as soon or as late as the parties desire, and can cover any topics that need to be discussed.

· Personal Control: The parties (not a judge or jury or arbitrator) make all decisions.

· Flexibility: The process moves at the parties’ pace.

· Privacy: The parties craft their own rules regarding confidentiality.

· Opportunity: Future-focused solutions possibly preserve business relationships and avoid the blood feud.

· Satisfaction: All agreements reflect each party’s needs and interests.

Resolving disputes through the collaborative law process provides the parties the chance to preserve relationships which are very important in the construction industry without creating a business-ending enemy.

Also key is the following: while the collaborative process is ongoing, the parties agree not to initiate or pursue litigation or arbitration, and projects likely do not stop, but continue to go forward. To foster complete transparency, a degree of professionalism is necessary and requires the parties’ and lawyers’ agreement to not take advantage of known mistakes, errors of law or fact, miscalculations, inconsistencies, parties positions, or claim. If these are errors are discovered by one party, they must give the other party an opportunity to correct it.

This process requires some commitment and the need to set aside animosity, hard feelings, and the need to win that typically goes along with construction disputes. The collaborative law process is really about problem solving and finding solutions and not winning a fight.

If the parties opt for the collaborative process, generally an agreement is signed by all parties and their lawyers outlining the terms of the process. If after all collaboration, discussion, negotiation, and problem-solving efforts by the parties and no resolution is achieved, then the parties can go sharpen their swords and go to battle with litigation, arbitration, or any other dispute resolution process. One caveat is that the parties will be forced to find new lawyers to help them. Lawyers who are engaged in the collaborative process — because of the open exchange of confidential information — are not able to provide representation in litigation from the issues of the failed collaborative process.

The prevalence of collaborative law and its use in construction cases is unknown. It does provide another process for contractors to use when construction disputes arise.

About the author: Todd A. Jones is an attorney with Anderson Jones, PLLC in Raleigh, North Carolina, a law firm with attorneys licensed in North Carolina, South Carolina, and Georgia. For more information or questions about this article, please email him at [email protected].

Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.

About the Author

Todd A. Jones
Todd A. Jones is an attorney with and founding partner of Anderson Jones PLLC, Raleigh, N.C. He has extensive experience in construction law and litigation. Law Clerk Katie Dunn assisted with the article.

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