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Showing posts from October, 2009

Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting mutually beneficial solutions.   It res
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LEED to Become More Stringent

http://southeast.construction.com/features/2009/1101_GreenDesignAndConstruction-1.asp# This post is a good follow-up to my recent webinar for Professional Builder Magazine, "Legally Green: Deliver the Green You Promise." It discusses the latest requirement for LEED, which includes providing water and energy-usage data for five years after the building is complete. It means that a building could face de-certification. From a legal standpoint, this could be a nightmare. Who would be liable? What sort of guarantees are now going to be required from contractors and construction companies? What about those who provide subsequent repairs and maintenance? The issues regarding causation alone could result in years of litigation. I am going to be publishing a series of blog posts from my presentation that will elaborate on these issues, but I can't help wondering whether the powers that be should be planning more carefully before imposing these restrictions. This kind of stri
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On a Federal Construction Project? Remember the Miller Act

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A New Guest Post from Christopher Hill Chris Hill is a construction lawyer at DurretteBradshaw, PLC in Richmond, Virginia, LEED AP, author of the Construction Law Musings Blog and member of Virginia's Legal Elite in Construction Law . He specializes in mechanic's liens, occupational safety issues, contract consulting and review and general risk management for all levels of construction professionals from contractors to subcontractors to material men. Federal and State government work are a growth area in construction these days. With the economy in a downturn (though possibly turning around according to ENR ), government projects are even more desirable for commercial contractors. With this trend toward government contracting, becoming the lowest bidder and squeezing your margins is a big temptation, or even necessity. Along with this lower margin comes higher risk . However, one saving grace for contractors on Federal projects is the Miller Act .
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Why Builders Shouldn't Cut Their Prices

In a previous post, I discussed why now is a good time to renovate. I pointed out that builders are not as busy and can devote more time to their projects, the economy has weeded out a number of "fly by night" contractors who were not truly dedicated to the profession and there have been sales on supplies and materials. One advantage that I did not mention, however, was the opportunity to ask builders to cut their prices. That's because I do not believe it's reasonable for owners to try to negotiate lower prices, and it's not good for the profession for builders to do so. Professional builders are usually quite realistic when preparing proposals for projects. I have met many contractors who proudly tell me that their jobs do not go over budget (barring unforeseen circumstances). They are usually quite clear about their markups and profit margins and accurate when determining allowances. They exemplify the adage that "you get what you pay for." Consi
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Time and Materials Contracts-Are They Illegal in Massachusetts?

I must admit, this question has been plaguing me as it pertains to Massachusetts. This issue applies to residential renovation only, but I know of many high-end contractors who use this method for their projects . Massachusetts law provides: Chapter 142A: Section 2. Residential contracting agreements; requirements Section 2. (a) Every agreement to perform residential contracting services in an amount in excess of one thousand dollars shall be in writing and shall include the following documents and information: (1) the complete agreement between the owner and the contractor and a clear description of any other documents which are or shall be incorporated into said agreement;... (4) a detailed description of the work to be done and the materials to be used in the performance of said contract; (5) the total amount agreed to be paid for the work to be performed under said contract; Given that a Time and Materials Contract does not have a price, I would argue that it violates t
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Protecting & Preserving Fine Wine

Here's a great guest post from Paul G. Cox, the Business Development Manager at Vigilant Woodworks on wine c ellars: If you have a growing collection of wine, it may be time to think about building a wine cellar or tasting/entertainment area in your home. Some time ago the custom wine room was unusual; today more and more wine lovers are learning about wine cellar construction or contracting the work out to those who know how to do the job properly. Wine cellars are more than a dark, cool place to stock a collection of wine bottles. Today’s custom wine cellar is a controlled environment where humidity and temperature are regulated to allow wine to correctly age without damage to corks, labels or the wine itself. There are two styles of wine cellars . One is an area that has been particularly made to store wine in the correct environment and the other is a stand-alone system that duplicates those conditions. A stand-alone wine cellar is not
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