Category Archives: Articles

NEW AAA ALTERNATE DISPUTE RESOLUTION PROCEDURES IN 2014

The American Arbitration Association (AAA) rolled out two new dispute resolution procedures for construction disputes in 2014: The “Supplementary Rules for Fixed Time and Cost Construction Arbitration;” and in association with DecisionQuest, “CaseXplorer Arbitration.” The first process for fixed time and cost arbitration is focused on disputes where the parties/lawyers desire to keep dispute resolution costs down and to obtain a prompt arbitration decision. The second process, “CaseXplorer Arbitration” is more focused on larger cases due to its cost.
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CONSTRUCTION DISPUTE RESOLUTION – WHAT DOES IT COST FOR AAA, JAMS, OR CPR, TO ADMINISTER AN ARBITRATION CASE; AND HOW DO THE INITIAL FILINGS VARY UNDER THOSE RULES?

Domestic arbitration organizations such as AAA, JAMS, and CPR publish rules that the arbitration organizations use in administering construction arbitration proceedings. Arbitration organizations charge fees for arbitration administration to compensate the organization for the services provided. This article is limited to commercial and construction cases. The organizations offer different pricing for services and procedures when using expedited rules, consumer rules, employment rules, or rules for cases to be decided on documents only.
The arbitration organizations have spent considerable time to make it easy to proceed under their rules, which are fairly comprehensive. However, it amazes your author to find the number of parties and lawyers who have only a foggy concept of what the administrative costs for a case will be. Continue reading

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CONFESSIONS FROM A CONSTRUCTION MEDIATOR, THE ROLE OF INSURANCE IN CONSTRUCTION MEDIATION

Through my travels around the State of Florida, I have come to observe a fairly uniform trend amongst participants to the Construction Mediation process. And unfortunately, that “trend” is essentially a misunderstanding of just how insurance companies evaluate, and indeed MUST evaluate a case, as it relates to their participation in the Mediation process.
I do not wish to mislead on this point. Certainly, attorneys are aware that Fla. R. Civ. P. Rule 1.720 establishes that the “authority” an insurance adjuster must bring to Mediation is “the policy limits or the Plaintiff’s last demand – whichever is less.” That said, in complex construction Mediations, so very often the range or value established by the Insurer is something less than policy limits, despite the notion that “authority “ may be present potentially up to policy limits. It is this real world distinction that I am referring to within the context of this paper; namely the difference between the Rule and the actual process by which Insurers establish a range within which a case can be settled at Mediation… Continue reading

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Professional Liability Policies 101

Even competent architects, engineers and other design professionals make mistakes. This is why there are professional liability policies. They provide an added layer of protection for those hiring design professionals. However, there are several unique aspects of professional liability policies that can limit the coverage – and monetary compensation – that is available. This article explores these unique issues.
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Class Arbitrations Under Attack – But Survive

Reprinted with permission from the Journal of the American College of Construction Lawyers, Volume 7, Number 1, Winter 2013, ©2013 Thomson Reuters. Further reproduction of without permission of the publisher is prohibited. For additional information about this publication, please visit http://west.thomson.com.
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When is a “Final Construction Lien Release” Really Final?

We know that prudent practice dictates that when payment is made for construction work and/or materials, the party making payment1 (payor) should obtain a release of payment claims for the work and/or materials being paid.2 In addition, if payment is made to a contractor, subcontractor, or sub-subcontractor, releases from people furnishing labor or materials under the payee should also furnish releases to the extent of the payment being made, particularly if those people have served a notice to owner. Lienors are statutorily obliged to execute partial releases when receiving money. Continue reading

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The Interaction Between Arbitration and Construction Lien Enforcement

Reprinted with permission from the Dispute Resolution Journal , vol. 66, no. 2 May-July 2011, a publication of the American Arbitration Association, 1633 Broadway, New York, NY 10019-6708, 212.716.5800, http://www.adr.org
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