Mediation and Arbitration 101 for Architects, Engineers and Contractors

By Gary L. Cole AIA, Esq.

[Gary L. Cole AIA, Esq. is Chica­go-based Illi­nois and Flori­da-licensed attor­ney and Illi­nois-licensed archi­tect. He prac­tices con­struc­tion law, is a con­struc­tion and com­mer­cial arbi­tra­tor and medi­a­tor, and is an his­toric preser­va­tion attor­ney and expert wit­ness and con­sul­tant.  He can be reached at www.garylcolelaw.com]

With civ­il litigation’s ris­ing costs, medi­a­tion and arbi­tra­tion are grow­ing in pop­u­lar­i­ty as poten­tial­ly quick­er and more cost-effec­tive alter­na­tive dis­pute res­o­lu­tion forums. Archi­tects, engi­neers and con­trac­tors who incor­po­rate well-con­sid­ered medi­a­tion and arbi­tra­tion claus­es into their con­tracts and ser­vice agree­ments may have an advan­tage over those who do not, and, who lat­er find them­selves embroiled in cost­ly and pro­tract­ed litigation.

Medi­a­tion and arbi­tra­tion, how­ev­er, dif­fer fun­da­men­tal­ly in their approach­es and some con­flicts may be bet­ter resolved in one forum over the other.

Medi­a­tion Basics 

Broad­ly speak­ing, medi­a­tion is a more infor­mal dis­pute res­o­lu­tion process than arbi­tra­tion in which a neu­tral par­ty – a medi­a­tor – assists two or more par­ties in reach­ing a nego­ti­at­ed set­tle­ment on their own.

Medi­a­tion is pri­vate, con­fi­den­tial and gen­er­al­ly non-bind­ing; unless a set­tle­ment agree­ment is entered into by the dis­put­ing par­ties. Many con­tracts, espe­cial­ly design and con­struc­tion agree­ments, con­tain require­ments that par­ties attempt to resolve any dis­putes through medi­a­tion as a pre­req­ui­site to purs­ing arbi­tra­tion and/or litigation.

Medi­a­tion can occur through a process known as facil­i­ta­tive medi­a­tion, in which parties …

A Call for Replacing the Secretary’s Standards with a Model Historic Building Code

By Gary L. Cole AIA, Esq.

“… The Stan­dards are nei­ther tech­ni­cal nor pre­scrip­tive, but are intend­ed to pro­mote respon­si­ble preser­va­tion prac­tices that help pro­tect our Nation’s irre­place­able cul­tur­al resources.  For exam­ple, they can­not, in and of them­selves, be used to make essen­tial deci­sions about which fea­tures of the his­toric build­ing should be saved and which can be changed.  But once a treat­ment is select­ed, the Stan­dards pro­vide philo­soph­i­cal con­sis­ten­cy to the work.”  Intro­duc­tion to Stan­dards and Guide­lines.  Nation­al Park Service.

     On Jan­u­ary 25, 2013, for­mer U.S. Sec­re­tary of the Inte­ri­or Ken Salazar asked the Nation­al Park Ser­vice (NPS) to con­duct an inter­nal review of the Fed­er­al His­toric Preser­va­tion Tax Incen­tives Pro­gram (HTC) to “… make sure that we are doing every­thing we can to work in part­ner­ship with local com­mu­ni­ties, devel­op­ers and oth­er stake­hold­ers to pro­vide guid­ance and pro­mote restora­tion efforts.”

     At the time, this was wel­come news, though as a for­mer Illi­nois State His­toric Preser­va­tion Office (SHPO) staff archi­tect charged with inter­pret­ing the Sec­re­tary of the Interior’s Stan­dards for Reha­bil­i­ta­tion (Stan­dards) for the HTC and oth­er his­toric reha­bil­i­ta­tion tax-incen­tive pro­grams and now as a pri­vate prac­tice attor­ney, I tem­pered my expec­ta­tions.  Con­struc­tive gov­ern­men­tal reform is rarely a swift or rev­o­lu­tion­ary process.

     And, in 2024, more than ten years after for­mer Sec­re­tary Salazar’s request to the NPS, lit­tle, if any­thing, has been done to accom­mo­date that mandate.

     Many of this coun­try’s his­toric preser­va­tion laws and pro­grams are near­ly old enough for their own his­toric des­ig­na­tions and are in dire need of reha­bil­i­ta­tion.  The his­toric prop­er­ty-own­ing pub­lic would cer­tain­ly appre­ci­ate a lit­tle reg­u­la­to­ry stream­lin­ing of the HTC pro­gram, start­ing with elim­i­nat­ing appli­ca­tion fees for the redun­dant SHPO and NPS review process.

     Mean­ing­ful reform also includes reform­ing how his­toric prop­er­ties and com­mu­ni­ties attract rein­vest­ment cap­i­tal for busi­ness growth, job cre­ation, and local eco­nom­ic sta­bil­i­ty. This reform should start by rel­e­gat­ing the Stan­dards to their stat­ed and intend­ed role of sim­ply pro­vid­ing philo­soph­i­cal con­sis­ten­cy for his­toric reha­bil­i­ta­tion efforts. It should not con­tin­ue to serve as a de fac­to his­toric build­ing code enshrined as fed­er­al reg­u­la­tions and incor­po­rat­ed direct­ly into fed­er­al and state his­toric preser­va­tion laws and pro­grams, nor local his­toric preser­va­tion ordi­nances, includ­ing those of Cer­ti­fied Local Governments.

    Hard­ly changed since their incep­tion in 1977, the Stan­dards com­prise a ten-point man­i­festo of his­toric preservation’s essen­tial reha­bil­i­ta­tion doc­trine as enforced by fed­er­al, state, and local his­toric preser­va­tion reg­u­la­to­ry enti­ties. Though most of the Stan­dards have retained their rel­e­vance in vary­ing amounts, some have not. The sec­ond part of the unloved Stan­dard No. 9, for exam­ple, is the prod­uct of an equal­ly unloved 1970s Mod­ernist bias and should be eliminated …

BIM in Construction Arbitration and Mediation?">Using BIM in Construction Arbitration and Mediation?

By Gary L. Cole AIA, Esq.

Inter­est­ing arti­cle HERE, and I agree, BIM has unique pos­si­bil­i­ties in arbi­tra­tion and medi­a­tion as an evi­den­tiary track­ing tool, but in dif­fer­ent ways.

In con­struc­tion arbi­tra­tion, com­par­ing a con­trac­tu­al scope of work — includ­ing one that evolved dur­ing a project — with the work com­plet­ed might pro­vide the par­ties and the arbi­tra­tor with a more objec­tive and empir­i­cal mea­sur­ing stick for com­par­ing the par­ties’ intent with a project’s completion.

In con­struc­tion medi­a­tion, espe­cial­ly in “eval­u­a­tive” medi­a­tion, the same holds, but the BIM find­ings also pro­vide the medi­a­tor with more tools to bring the dis­pute to set­tle­ment, main­ly when those find­ings are used with the mediator’s sum­ma­ry of the strengths and weak­ness­es of each par­ties’ case, as pre­sent­ed to each par­ty in con­fi­den­tial ex parte discussions.

How­ev­er, in both arbi­tra­tion and medi­a­tion, using a tool like BIM most effec­tive­ly still requires that coun­sel for the par­ties, the arbi­tra­tor, and the medi­a­tor have the tech­ni­cal exper­tise to under­stand the kind of evi­dence BIM pro­vides – and the abil­i­ty to give that evi­dence the weight it does or does not deserve, depend­ing on the dispute.