Architects Use Mediation To Settle Disputes

Architects Use Mediation to Settle Disputes



If you are an architect who has never been sued in court with a professional liability claim, you should consider yourself lucky. As many architects have learned the hard way, these types of lawsuits can turn ugly fast. The litigation process begins to take on a life all its own with both sides being drained financially and emotionally. In the end, the "winner" of the case finds that the end result was not worth the emotional turmoil and disruption of family life that resulted from the process. After such a case, hard feelings remain on both sides, ending forever the hope of a future relationship. For all of the reasons mentioned above, insurance companies began to ask policy-holders, nearly ten years ago, to use mediation in their liability claims to avoid going to court. Mediation is a voluntary process that involved hiring a third party to help mediate and solve the conflict, usually within a day or two.



When mediation first began to be used, in the late 1980s, most architects did not like the idea of using a mediator to settle disputes. Even after other industries proved by using mediation that it was a good idea and even after it had gained a reputation as a speedy and inexpensive way to resolve conflicts in the areas of consumer protection and civil rights, architects still tended to shy away from mediations, perhaps viewing it as a sign to their opponent that they had a weak case. However, in the 1990s a number of failed condo projects and an increasingly litigation-happy public forced architectural firms to begin looking for lower cost options to litigation. The attitudes toward mediation changed. Nowadays, mediation is considered the first step to a problem with a client and AIA contracts generally require that mediation is listed contractually as the first resort to any problems.



However, not every case should use mediation as the first resort. Frank Musica, a risk management attorney at Victor O. Schinnerer and Company, a liability insurance provider, says that it is best to settle a case involving clear-cut architect error. In this type of case, the best way to avoid going to court is to settle outside of court, if possible.



Also, when the problem is obviously a frivolous one that the firm is being dragged into, for example an injured construction worker who is trying to get more money than worker's compensation allows, that type of case is usually best fought in the courtroom. Shinnerer/CNA's processed 4,500 claims last year, with less than one percent going to court. The majority of the cases were either settled out of court of in mediation, with 80 percent deemed successful.



What can be strange or unusual about the judicial system and mediation is that even within the system, mediation is the expected protocol. If you were to get to trial with a case, the judge could very well ask you if you have been to mediation. Architect and attorney, Stanley Martin, a partner in Boston, says that if you say you haven't mediated first, a judge will very likely look at you "sternly over the bench and suggest you do."