Quick Notes on Considerations when Choosing Arbitration or Litigation at the Time of Contracting

Rebecca L. Gobeil | Gordon Rees Scully Mansukhani

Current AIA standard form agreements allow for a choice between binding arbitration or litigation, with a further option to enforce mediation as a condition precedent to proceeding with the selected dispute resolution method. Each option has its advantages and disadvantages – and one option does not fit all cases. This article aims to illustrate the key advantages and disadvantages of pursuing arbitration, litigation, and/or mediation as a condition precedent.

First, it is important to consider the complexity of the construction project throughout the contract life cycle. A client would benefit from analyzing the number of contractors, subcontractors, and other entities, the size of the project, the difficulty of site location, regulatory requirements, and the proposed schedule, among other factors to determine the complexity of the project. In general terms, the more complex the project the better suited for litigation.

Litigation allows an arena for traditional discovery, predictability, and the opportunity to appeal. Whereas arbitration is often (but not always) more cost-effective, but less predictable and rarely allows an opportunity to pursue comprehensive discovery or appeal.

Litigation allows for written discovery, depositions, and other discovery as may be needed or suited for a particular case. On the other hand, arbitration usually will only allow for limited discovery at the discretion of the parties and the arbitrator. In a complex matter where discovery is necessary to assess the viability of a claim litigation is the preferred path. However, if the claims are easily assessed without discovery arbitration (with limitations on discovery) allows the matter to be resolved in a more cost-effective way.

Litigation is fairly predictable, in that it is governed by the rules of civil procedure. In contrast, arbitration decisions concerning procedure are largely left to the discretion of the arbitrator. Both options have areas of unpredictability – but litigation has a set of governing laws and rules, whereas arbitration does not. If the parties do not expect a need to conduct discovery, there will be a diminished need for predictability in procedural decisions regarding discovery, and arbitration may be the better and more cost-effective path.

Further, if the stakes are high and the claim is complex, litigation allows for the opportunity to appeal a decision, whereas arbitration rarely if ever allows for appellate review.

Deciding whether to agree to binding arbitration or litigation at the outset of a project – at the time of contracting — should be a decision made with careful consideration and a bit of strategy as to what potential claims would call for in terms of complexity and discovery needs. A great option for those deciding between arbitration and litigation is to also agree to mediation as a condition precedent to the initiation of the selected dispute resolution method. Mediation allows for early intervention into a claim, allowing the parties to potentially resolve a matter that would otherwise become costly, whether set in arbitration or litigation. Mediation is a great tool to gauge upcoming arguments that will be made in a forthcoming arbitration or litigation, and to gauge the potential for future settlement if it is not reached at mediation. Of course, mediation is not a fail-safe, particularly if the parties are particularly contentious or headstrong.

The inherent complexity of construction claims and the contractual dispute resolution avenue a party chooses to resolve the matter requires a thoughtful and strategic approach, including consideration of what may be important both to the resolution of the claim and to your client.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Drafting Arbitration Provisions: Tried & True Best Practices

Sarah Rawls | Butler Snow

“An ounce of prevention is worth a pound of cure.” Benjamin Franklin’s statement has reverberated for centuries in a variety of circumstances, and has enjoyed widespread use among attorneys, in particular. This especially holds true for attorneys tasked with drafting agreements or provisions designed, in part, to provide information on the front end that will govern future disputes.

An arbitration provision (or stand-alone agreement) is a perfect example because it is designed to make clear what forum—as between arbitration or a court of law—that parties agree to submit certain disputes to before an applicable dispute arises.

Typically, disputes about arbitration provisions arise after a lawsuit has been filed. The party seeking to enforce the arbitration provisions may be entirely reliant on how the agreement was drafted. Below are a few “best practices” that attorneys can implement when drafting arbitration provisions in order to prevent future headaches.

Emphasize Key Points

One of the first issues a court considers when deciding a motion to compel arbitration is whether the parties agreed to arbitrate the dispute. To ward off potential arguments that a plaintiff did not know he/she was submitting to arbitration or did not know material terms, drafting attorneys should bold, underline, and/or CAPITALIZE material terms.

The goal is to clearly inform the individual to be bound that he/she is agreeing to submit claims to an arbitrational forum. Courts appreciate the embellishment, especially when the agreement is contained in an otherwise lengthy document.

Designate Methods of Acceptance

Additionally, drafters of arbitration provisions should clearly designate the method by which an individual may accept the terms of the agreement. If a signature is all that is required, state whether the signature may be electronic or wet ink—or both, where one is just as effective as the other.

In the employment context, an arbitration agreement—even one unsigned—may be enforceable under the Federal Arbitration Act where an employee’s acceptance is expressly made contingent upon beginning or continuing employment. The Eleventh Circuit Court of Appeals has found that an employee accepted the arbitration policy where the policy provided that acceptance of employment or the continuation of employment by an individual shall be deemed to be acceptance,” “no signature would be required for the policy to be applicable,” and “the policy would be a condition of continued employment.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1370–75 (11th Cir. 2005).

Limit Number of Arbitration Provisions

Enforceability issues can arise when an individual receives a number of documents as part a transaction or agreement, and one or more of those documents contain an arbitration provision. The risk is that the terms of multiple arbitration provisions will materially differ—or outright conflict— to the point where a court may find that the parties did have a “meeting of the minds” about whether to arbitrate. As a matter of best practice, a drafter should limit the amount of provisions and ensure, at a minimum, that they do not conflict—bonus points if the drafting attorney can incorporate one governing provision by reference into the other provisions.

Consider Including a Delegation Provision

In the context of a motion to compel, a court is tasked with deciding whether an arbitration agreement is valid and enforceable such that it must send the case to an arbitrator. Parties can contract around this, however, and make clear that an arbitrator—and not a judge—should decide these gateway issues through a so-called “delegation provision.” A delegation provision is simply an additional, antecedent agreement a party seeking arbitration asks the court to enforce.

A bare-bones delegation provision would read something like as follows: Any claim or dispute, whether in contract, tort, statute or otherwise (including the arbitrability of the claim or dispute) shall be resolved by neutral, binding arbitration and not by a court. A draft would be well-advised to more specifically list what issues qualify as issues of arbitrability.

If a drafting attorney can show that the parties clearly and unmistakably agreed to arbitrate arbitrability, then a court will have no choice but to direct the matter to arbitration. This result not only saves the court time from having to engage in a length analysis about the validity and enforceability of the arbitration provision as a whole, but it also saves the enforcing party time and money that could be directed to more valuable tasks.

While taking the time to tweak arbitration provisions may not appear worthwhile, especially when the agreements are couched in a voluminous agreement with an overall higher degree of significance, that time investment likely will pay off should the provision end up in court. Defense attorneys, judges, and clients will appreciate the ounce of prevention.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Too Costly to Be Fair: Texas Appellate Court Finds the Arbitration Clause in a Residential Construction Contract Unenforceable

Gus Sara | The Subrogation Strategist

In Cont’l Homes of Tex., L.P. v. Perez, No. 04-21-00396-CV, 2022 Tex. App. LEXIS 7691, the Court of Appeals of Texas (Appellate Court) considered whether the lower court erred in refusing to enforce an arbitration clause in a construction contract between the parties. The Appellate Court considered the costs of the arbitration forum required by the contract in the context of the plaintiffs’ monthly household income. The court also compared the arbitration cost to the estimated cost of litigating the dispute. The court held that the arbitration clause was substantively unconscionable on the grounds that the arbitration costs were not affordable for the plaintiffs and not an “adequate and accessible substitute to litigation.”  The Appellate Court affirmed the lower court’s decision denying the defendant’s motion to compel arbitration.

The plaintiffs, Giancarlo and Krystle Perez (collectively, the Perezes), hired the defendant, Continental Homes of Texas, LP d/b/a Express Home (Express Homes), to build a new home in San Antonio. Express Homes provided its standard contract, which included a binding arbitration clause. The clause stated that every potential dispute between the parties occurring before and after the closing of the purchase of the home was subject to binding arbitration, to be administered and conducted by the American Arbitration Association (AAA). The clause also stated that the costs of the arbitration were to be split by the parties.

The Perezes filed a lawsuit in Texas district court against Express Homes alleging defects in the foundation of the home. The complaint asserted claims for fraud, breach of contract, negligence and violations of the Texas Deceptive Trade Practices Act.

Express Homes filed a motion to compel arbitration, arguing that the contract mandated binding arbitration through the AAA. The Perezes opposed the motion on the grounds that the arbitration clause was substantively unconscionable because they could not afford the costs of the arbitration. The Perezes also argued that the cost of arbitrating through the AAA were higher than the costs of litigation.

In support of their argument, Ms. Perez submitted an affidavit setting forth the Perezes monthly income. In addition, the Perezes’ attorney submitted an affidavit stating that based on his experience with AAA arbitrations, the cost of arbitrating the subject dispute would be over $10,000 per party, not including his fee. The Perezes also provided the resumes of twenty (20) AAA arbitrators, whose use cost an average of $2,000 per day. The attorney also stated in his affidavit that he agreed to a monthly payment plan for his hourly fee, which would be considerably lower than the cost of arbitration.

Express Homes disputed the cost estimates provided by plaintiffs but did not provide any rebuttal evidence. Express Homes claimed that the arbitrators identified by the Perezes were not qualified to handle the case, and thus their costs were irrelevant and should not be considered.

The Appellate Court acknowledged that it would accept the trial court’s factual determinations since they were supported by evidence but would review the trial court’s legal determinations de novo. The issue of whether an arbitration clause is enforceable is a question of law. The court noted that Texas precedent established that the factors to consider are the party’s ability to pay the arbitration fee, the actual amount of the fee in relation to the amount of the underlying claim, and the cost differential between arbitration and litigation in court. The court further explained that a comparison of the total costs of the two forums is the most important factor in determining whether the arbitral forum is an adequate and accessible substitute to litigation.

The Appellate Court found the plaintiffs’ evidence compelling. The court disagreed with the defendant that the plaintiffs needed to show exactly which arbitrator would be appointed in this case. The court also relied on the attorney’s affidavit explaining his experience and knowledge with AAA, and the associated costs. The court also considered the plaintiffs’ monthly income and liabilities, which left the plaintiffs with little money to spare. The court also relied on the evidence that the plaintiff’s attorney agreed to a “shoestring budget” and an affordable monthly payment plan for his fees. Based on the evidence showing that the arbitration costs exceeded the litigation costs for the Perezes, and that the Perezes could not realistically afford arbitration, the court found the arbitration clause to be substantively unconscionable and unenforceable.

The Perez case reminds us that Texas provides protections against unconscionable arbitration provisions. If an arbitration agreement is substantively impractical because it makes the arbitration more expensive than litigation, and too expensive for one of the parties, then there is an argument that the arbitration clause is not enforceable. It is unclear how the holdings of this case would affect subrogation claimants as subrogating carriers generally have the means to incur arbitration expenses. Nonetheless, subrogation professionals practicing in Texas should consider this decision when reviewing arbitration clauses as there may be legitimate challenges to substantively unfair arbitration clauses.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Debate: Arbitration or Court: Know the Pros and Cons

David K. Taylor and Kyle M. Doiron | Bradley

Many construction contracts used in the industry include clauses mandating that any disputes be decided by binding arbitration rather than a jury or bench trial. The standard AIA forms provide the parties with the option of court or arbitration. Trial courts, overwhelmed by a flood of cases and supported with strong caselaw and statutory precedent, regularly enforce arbitration clauses.  Yet the decision to choose arbitration over litigation is a major business decision when drafting and negotiating contracts that should not be made lightly.

Many construction lawyers vehemently disagree on the merits of arbitration versus litigation for construction disputes, and this debate will likely continue. When evaluating this choice, lawyers, and business decisionmakers must know in advance what a party will likely get—and not get—by choosing to arbitrate or litigate a construction dispute to best make this decision.

Problems with Courtroom Litigation

The primary reason for the preference of arbitration is often the perception of the legal system’s defects. Few companies that have been through a lawsuit, even one resolved in its favor, would wish to endure it again. Why? Some common problems are inherent to litigation:

Cost. Litigation is time-consuming and expensive. More to the point, while approximately 95% of civil cases settle before trial, settlement often takes place on the courthouse steps after the parties have incurred most of their expenses. Construction disputes in particular can take longer and be more expensive to resolve than other commercial disputes as they are highly fact intensive and deal with large amounts of information.  Out-of-pocket costs for attorneys, expert witnesses, depositions, electronic-discovery consultants (those tasked with gathering every pertinent email) and other discovery expenses are considerable.

In most U.S. jurisdictions, unless the contract contains a provision for attorneys’ fees, such costs are not recoverable even by the victorious party. A company may “win” its case only to realize that after subtracting lawyer fees and other items, its bottom line is a net-zero “recovery.” Even when a party wins, it faces the question of whether the judgment is collectible. A judgment against a bankrupt or marginally solvent defendant might not be worth the paper on which it’s printed. While the same is true of a bankrupt party after arbitration, it remains that litigation generally is more expensive than arbitration such that the overall out of pocket costs are lower and the result is usually obtained more quickly in arbitration.

Litigation also produces substantial soft costs. Time is money. In any suit, management and other key employees must devote considerable time to the dispute even if a project has been completed for many years; forced attention paid to a past job detracts from one’s focus on current jobs and new clients. Key employees may have moved on and may be uncooperative. It also affects the morale of any staffers who feel “tainted” by the whole process.

Publicity and public filings. Lawsuits can damage reputations and boost one’s competitors. Court filings are public records. Even if frivolous, the mere filing of a lawsuit may make the front page of the local news or be featured in a trade journal, a prominent email chain or an industry blog—whereas the successful defense or dismissal of the claim, sometimes years later, might not get reported at all.

Court filings and trial testimony, meanwhile, are generally open to any competitor. In a case involving a claim for lost profits, for instance, the business making the claim may be required to open its tax records to prevail. The parties can agree on protective orders, but even if they do, once such documents are produced, they’re out there for any interested outside party to potentially discover.

Time. Lawsuits can take years just to get to trial. After which, of course, the losing party has an automatic right to appeal . . . which might consume years more (and will be expensive). The right to appeal an adverse ruling is a point in favor of litigation—and that right, while time-consuming, can make litigation more predictable in the long run at least in terms of legal issues. But a competent lawyer can delay payments of a judgment with those same rights to appeal. And an otherwise solvent defendant might be able to delay a final judgment, and by the time that judgment is rendered, that company’s assets are gone, or it has filed for bankruptcy.

Less predictable initial results. In any courtroom, there is no way to guarantee what an elected judge (yes, the phenomenon of “home cooking” does exist) or the jury might do. If the case involves complicated facts, expert testimony, or industry-specific issues, it’s quite possible that the jury—or even the judge—will get confused and fail to focus on the topics of primary importance, leading to an incorrect, inexplicable result. As stated above, while choosing to litigate provides more pathways to appeal which helps with the predictability issues, the need for such appellant rights is arguably lower in arbitration.

Pros and Cons of Binding Arbitration

Predictability. Most arbitrations are heard and decided by a neutral third party (or panel of them), generally experienced construction lawyers. Arbitrators do not have to be lawyers but can be (for example) engineers, bankers, or developers trained in arbitration. This can minimize some of the concerns above and reduce the time required to educate a judge or jury about the nuances of a dispute. Properly selected arbitrators are more likely to understand and focus on the key material issues and are typically not as easily swayed by lawyers’ emotional arguments or “expert” witnesses that might lose people in technical minutia.

Time. Because there’s no crowded court docket competing for attention, arbitration hearings can often be scheduled within months, not years. Even when millions of dollars are at stake, hearings can commence more quickly than in court, where criminal trials take priority over civil ones, especially in federal court. In general, one day of an arbitration hearing equals two or three days of trial. Grounds for appealing an arbitration award usually are also circumscribed as discussed above, so finality is the rule rather than the exception.  In many arbitration fora, the arbitrator(s) is (are) required to issue a ruling within 30 days, unlike state or federal court without no such definitive deadlines. 

Arbitration is also less formal; the applicable rules of evidence and procedure might not be as strictly followed.  This fact cuts both ways.  While it often makes the proceeding smoother with less time spent fighting over, for example, the admissibility of a fact or document or opinion, it also means more information is likely to get in front of the arbitrator (whether that information is considered or not may be a different story).

Costs. Arbitration is generally less expensive than litigation, which is often criticized for the time and expense of pretrial discovery. As such, it’s significant that with a few exceptions, arbitration limits discovery. The lack of multiple pre-hearing motions and limited pre-hearing depositions, as well as the finality of the award, substantially reduce attorneys’ fees and overall costs. But of course, without knowing at the time of entering a construction contract, you may ultimately wish you had the ability to take those extra depositions, which an arbitrator may not allow to occur. Parties often in arbitration are stuck to some extent rolling the dice with what a witness may say in arbitration.  A risk much less common in trial.

One additional caveat: Unlike in court, the parties must pay for arbitration. There are initial filing fees based on the amount of the claim, and arbitrators typically charge hourly rates that must be paid in full prior to any hearing. This adds up: Do the math on $550 an hour for three arbitrators over 10 days of hearings.

Privacy. Unlike courtroom litigation, arbitration is private and confidential. The proceedings are not public records; arbitrators maintain the privacy of the hearings unless some statute mandates to the contrary.

Conclusion

Arbitrating construction disputes is not a panacea, nor is it always the right choice. All its “pros” come paired with “cons.” And while this author thinks there is good reason for the predominance of arbitration agreements in this industry, if a loss in a dispute might put the business under, sticking to litigation (with the right to conduct full-blown discovery and the right to appeal) may be the better choice.

The bottom line: If the dispute can be resolved through arbitration in most instances the proceedings will be faster, more predictable, confidential, and less expensive than a trip to court. But parties opting to arbitrate are in most circumstances giving up their right to appeal, and while saving money on discovery, they may ultimately wish they had the ability to spend that money.  Reasonable minds can differ on the best choice, but it is one that should not be entered blindly.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Great Debate: Do You Arbitrate Commercial Disputes?

David Taylor | Bradley

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place it’s very solvency in the unpredictable hands of a judge and jury?

Many “form” commercial contracts contain clauses mandating that any disputes that arise be resolved by binding arbitration rather than a jury or bench trial. Most trial courts, overwhelmed by a flood of cases, regularly enforce arbitration clauses—yet the decision to arbitrate and not litigate is a major business decision that should not be made lightly. Many great lawyers, transactional and litigators alike, vehemently disagree on the merits of arbitration versus litigation, and this debate will surely continue for eons. When advising their clients, lawyers must know in advance what a party will likely get—and not get—by choosing to arbitrate or litigate a commercial contract dispute.

Many great lawyers, transactional and litigators alike, vehemently disagree on the merits of arbitration versus litigation, and this debate will surely continue for eons. When advising their clients, lawyers must know in advance what a party will likely get—and not get—by choosing to arbitrate or litigate a commercial contract dispute.

Problems with Courtroom Litigation

The primary reason many businesses—construction entities, say—prefer arbitration is their perception of the legal system’s defects. Few companies that have been through a lawsuit, even one resolved in its favor, would wish to endure it again. Why? Some common problems are inherent to litigation:

Cost. Litigation is time-consuming and expensive. More to the point, while 95% of civil cases settle before trial, settlement usually takes place on the courthouse steps after the parties have incurred most of their expenses. Out-of-pocket costs for attorneys, expert witnesses, multiple pretrial depositions, electronic-discovery consultants (those tasked with gathering every pertinent email) and other discovery expenses are considerable.

In most U.S. jurisdictions, unless the contract contains a provision for attorneys’ fees, such costs are not recoverable even by the victorious party. A company may “win” its case only to realize that after subtracting lawyer fees and other items, its bottom line is a net-zero “recovery.” Even when a party wins, it faces the question of whether the judgment is collectible. A judgment against a bankrupt or marginally solvent defendant might not be worth the paper on which it’s printed.

Litigation also produces substantial soft costs. Time is money. In any suit, management and other key employees must devote considerable time to the dispute; forced attention paid to a past job detracts from one’s focus on current jobs and new clients. It also affects the morale of any staffers who feel “tainted” by the whole process.

Publicity and public filings. Lawsuits can damage reputations and boost one’s competitors. Court filings are public records. Even if frivolous, the mere filing of a lawsuit may make the front page of the local news or be featured in a trade journal, a prominent email chain or an industry blog—whereas the successful defense or dismissal of the claim, sometimes years later, might not get reported at all.

Court filings and trial testimony, meanwhile, are open to any competitor. In a case involving a claim for lost profits, for instance, the business making the claim may be required to open its tax records to prevail. The parties can agree on protective orders, but even if they do, once such documents are produced, they’re out there for any interested outside party to discover.

Time. Lawsuits can take years just to get to trial. After which, of course, the losing party has an automatic right to appeal . . . which might consume years more (and will be expensive). The right to appeal an adverse ruling is a point in favor of litigation—and that right, while time-consuming, can make litigation more predictable. Any smart lawyer who wants to can make the other side wait a long time before paying—which, counterintuitively, may be exactly what your adversary wanted. An otherwise solvent defendant might be able to delay a final hearing for frivolous reasons, and by the time judgment is rendered, that company’s assets are gone or it has filed for bankruptcy.

Unpredictable results. In any court case, there is no way to guarantee what an elected judge (yes, the phenomenon of “home cooking” does exist) or the jury might do. If the case involves complicated facts, expert testimony or industry-specific issues, it’s quite possible that the jury—or even the judge—will get confused and fail to focus on the topics of primary importance, leading to an unfair, inexplicable result. When a company places a substantial legal dispute (somewhat ominously known as a “bet the business case”) solely in the hands of a judge or jury, it’s essentially gambling.

Pros and Cons of Binding Arbitration

Predictability. Ideally, arbitration is heard by a neutral third party, generally a lawyer, with knowledge of and experience in the specific area of dispute—a construction lawyer, say. Arbitrators do not have to be lawyers but can be (for example) engineers, bankers or developers trained in arbitration. This can eliminate the substantial problems and time required to educate a judge or jury about the nuances of a dispute. Properly selected arbitrators understand and focus on the key material issues and are not easily swayed by lawyers’ emotional arguments or “expert” witnesses.

Because arbitrators are paid, they tend to pay closer attention to the proceedings and are likelier to care more about reaching the right outcome. Arbitration is also less formal; the official rules of evidence and procedure might not be strictly followed, ensuring that the focus can be on the facts and testimony.

Time. Because there’s no crowded court docket competing for attention, arbitration hearings can often be scheduled within months, not years. Even when millions of dollars are at stake, hearings can commence more quickly than in court, where criminal trials take priority over civil ones, especially in federal court. In general, one day of an arbitration hearing equals two or three days of trial. Grounds for appealing an arbitration award are also circumscribed, so finality is the rule rather than the exception.

Costs. Arbitration is less expensive than litigation, which is often criticized for the time and expense of pretrial discovery. As such, it’s significant that with a few exceptions, arbitration limits discovery. The lack of multiple pre-hearing motions and limited pre-hearing depositions, as well as the finality of the award, substantially reduce attorneys’ fees and overall costs.

One caveat: Unlike in court, the parties must pay for arbitration. There are initial filing fees based on the amount of the claim, and arbitrators typically charge hourly rates that must be paid in full prior to any hearing. This adds up: Do the math on $500 an hour for three arbitrators over 10 days of hearings. However, the cost of prolonged personal involvement by key company employees can accordingly be minimized.

Privacy. Unlike courtroom litigation, arbitration is private and confidential. The proceedings are not public records; arbitrators maintain the privacy of the hearings unless some statute mandates to the contrary.

Conclusion

Arbitration is not a panacea, nor it is always the right choice. All its pros come paired with a con. If a loss in a dispute might put the business under, sticking to litigation (with the right to conduct full-blown discovery and the right to appeal) may be the better choice.

An arbitration clause—there are plenty of in-depth articles about how best to draft one—is, after all, a contract clause that can reflect the specifics of the deal and lay out how, should a dispute arise, the arbitration will be conducted. Any commercial contract must discuss and analyze the many pros and cons of including an arbitration clause.

Even absent such a clause, after a dispute emerges, the parties should not blindly charge into litigation but rather discuss the possibility of arbitration. The bottom line: If the dispute can be resolved through arbitration or some other means of resolution (including nonbinding mediation), any company can be assured of proceedings that will, in many instances, be faster, more predictable, confidential and less expensive than a trip to court.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.