Mediation is often a good idea, but only if it is “ripe.” An unripe mediation can leave a bad taste in your mouth. Have you ever tasted an unripe persimmon? Not only will it drain all the moisture from your mouth, but you may never want to try one again – the tannins of the unripe fruit are very bitter. However, having tasted one ripened to perfection, you will certainly want more. The same is true of most fruit and of your experience with mediation.
Assuming your construction contract includes a mediation provision and you just received a letter from a subcontractor requesting mediation, how should you respond? Since the contract obligates you to mediate, you should agree, right? Yes, but the contract and the request may not account for a pre-mediation exchange of information to ripen the dispute before a mediation session. Mediating without a reasonable understanding of each party’s position and the relative risks and rewards of settlement is like tasting an unripe persimmon – it will drain the good perspective that you had for mediation and you may never want to mediate again.
But how will a pre-mediation exchange of information succeed? After all, the dispute probably arose because the parties couldn’t or wouldn’t work together through normal project procedures? How then can the parties expect to ripen the dispute for mediation?
With time, the gradual exchange of information, a willingness to consider both giving and taking, and maybe the help of a third-party, the parties will understand that resolving the dispute now will likely save time and money later.
Navigating the Requirements for Claims against Virginia Public Entities
Contractors making claims against Virginia public entities must follow ALL applicable requirements. Such requirements may be found in several places, so check […]
Virginia General Contractors Not Protected from Pre-Work Claim Waivers
On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights […]
Adding Terms to a Government Contract without Saying So
Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how?
Differing Site Conditions: When the Part Does Not Equal the Whole
If all apples are fruit, then why are all fruit not apples?
Forum Selection Can Be a Home-Court Advantage
I promise that any disputes between us will be argued at your house. Time passes and a dispute begins to brew. Now, I want to argue at my house, not at yours. You pay costs to argue at my house that you wouldn’t have incurred had I done as agreed. Should I have to reimburse your costs?
No-Damage-for-Delay and Owner-Related Dispute Clauses are No Defense to Surety Liability Under Miller Act
Prime Government Contractors - you may need to update your interim payment waivers.
Contractual Fairness is Whatever the Parties’ Agreed
When you know a current action or inaction is wrong, but you do not object, should you be allowed to object later?
Which Comes First – Specifications or Drawings?
Sometimes it's not better to ask for forgiveness after-the-fact.
Government Contract Claims: When Appeal is Rejection of Settlement
Without a reservation of rights, appealing a Contracting Officer’s Final Decision is a rejection of any offer of payment or settlement included therein. So, the contractor had only three options.
