Broadcast Date: Wednesday, September 23, 2020
from 3:00 pm to 5:00 pm (ET)
Overview:
Lack of proper project management and documentation, compliance with the present project standards, and excessive costs are often the reasons behind construction disputes. For years, these disputes have created significant challenges and risks in the construction industry.
Fortunately, the industry continues to work for the reduction and mitigation of disputes. With technologies that help to transform project management, successful project outcomes can now become more attainable. By proactively evaluating effective risk mitigation programs and developing effective dispute resolution techniques, it also becomes easier to avoid potential settlement table risks.
In this LIVE Webcast, a panel of key thought leaders and practitioners assembled by The Knowledge Group will provide the audience with an in-depth discussion of construction disputes. Speakers will also present risk mitigation techniques and best practices in handling risks and pitfalls.
Some of the major topics that will be covered in this course are:
- Construction Disputes: Trends and Updates
- Warning Signs of Potential Settlement Table Risks
- Risk Mitigation Tips and Strategies
- Essential Factors of an Effective Project Management Platform
- Dispute Resolution Clauses and Methodologies
- Best Practices
Credit:
Course Level:
Intermediate
Advance Preparation:
Print and review course materials
Method of Presentation:
On-demand Webcast (CLE)
Prerequisite:
General knowledge of construction law
Course Code:
149073
NY Category of CLE Credit:
Areas of Professional Practice
Total Credits:
2.0 CLE
How to Claim CLE Credits Per State:
https://knowledgewebcasts.com/how-to-claim-cle-credits-per-state/
CLE State Requirements:
https://knowledgewebcasts.com/cle-state-requirements/
CPE State Requirements:
Speaker Panel:
Andrew T. Burns, Partner
Cosgrave Verger Kester
Andy is the Chair of the firm’s construction practice group and a former managing partner of the firm. His practice focuses on providing advice and counsel to contractors, developers, architects, and engineers, litigating construction defect disputes, and construction related professional negligence claims. He also has significant experience in defending personal injury, products liability, environmental, and premises liability litigation.
Steven Nudelman, Partner
Greenbaum Rowe Smith & Davis LLP
Steve is a partner in the Litigation Department of Greenbaum, Rowe, Smith & Davis LLP, where he is a member of the Construction Practice Group. The firm has offices in Woodbridge and Roseland, New Jersey and in New York. Steve concentrates his practice in construction law and represents owners, contractors and design professionals in construction-related claims and disputes. He also represents community associations, unit owners and developers in lawsuits regarding construction defects, budgeting and financing issues and condominium governance. Steve maintains an active transactional practice, negotiating and drafting construction contracts for his clients. He frequently lectures industry groups and bar associations on construction law topics and is the legal columnist for two specialty trade publications, Plumbing Engineer and PHC News. Steve is also an author of the New Jersey Construction Q&A chapter of Practical Law, and the New Jersey chapter of CPI LienLaw Online.
Roger W. Bradley, Member
Melvin & Melvin, PLLC
Mr. Bradley serves as a Mediator for the American Arbitration Association in commercial matters with construction specialty; as a panel member of Mediators for the United States District Court for the Northern District of New York and on the panel of Neutral Evaluators for the New York State Supreme Court Fifth Judicial District. He has been a Member of the AAA National Panel of Arbitration for both commercial and construction cases for approximately 30 years.
He represents owners, lenders, sureties, contractors and subcontractors and suppliers in virtually every aspect of construction litigation including contract drafting, mechanic’s liens, bond claims, trust fund issues, as well as defending and prosecuting claims for extra work, delay and disruption, and subsurface conditions. He represents and counsels clients on all aspects of dispute resolution.
He has represented clients in multiple cases involving disputes over one million dollars in state and federal courts in New York and other states.
Mr. Bradley serves as a Mediator for the American Arbitration Association in commercial matters with construction specialty; as a panel member of Mediators for the United States District Court for the Northern District of New York and on the panel of Neutral Evaluators for the New York State Supreme Court Fifth Judicial District. He has been a Member of the AAA National Panel of Arbitration for both commercial and construction cases for approximately 30 years.
He represents owners, lenders, sureties, contractors and subcontractors and suppliers in virtually every aspect of construction litigation including contract drafting, mechanic’s liens, bond claims, trust fund issues, as well as defending and prosecuting claims for extra work, delay and disruption, and subsurface conditions. He represents and counsels clients on all aspects of dispute resolution.
He has represented clients in multiple cases involving disputes over one million dollars in state and federal courts in New York and other states.
Agenda:
SEGMENT 1:
Andrew T. Burns, Partner
Cosgrave Verger Kester
- Construction Disputes: Trends and Updates:
- Address effect of COVID on industry in general and on disputes in particular.
- Warning Signs of Potential Settlement Table Risks:
- Discuss effect of prevailing party attorney fee provisions on dispute risk.
- Risk Mitigation Tips & Strategies:
- Importance of constant written communication and its preservation
- Dispute Resolution Clauses and Methodologies:
- During Project
- Success of Architect or Engineer deciding disputes; alternatives, appointment of a neutral.
- Intrusive deadlines and timelines
- Continuance of work during dispute
- After Completion
- AAA arbitration vs alternatives.
- During Project
SEGMENT 2:
Steven Nudelman, Partner
Greenbaum Rowe Smith & Davis LLP
- Nature of Construction Projects and Risks
- Negotiation of Key Contract Terms
- Liquidated Damages / Bonus Provisions
- Indemnification
- Insurance
- Bonds
- Waiver of Subrogation
- Waiver of Consequential Damages
- Differing Site Conditions
- No Damages for Delay
- Dispute Resolution
SEGMENT 3:
Roger W. Bradley, Member
Melvin & Melvin, PLLC
- NEGOTIATION
- KEYS TO SUCCESS
- Control of Expectations – And Sooner Rather Than Later.
- Recognize Both Sides of your case. See e.g. ABA Model Rules. Lawyer as more than Advocate but as Counsel.
- Be Aware of “unknown” facts – i.e. those of which the other side but not you are aware
- Evaluate chance of error: (i) Misunderstanding the facts; (ii) error of law; Role of Jury
- Evaluate your witnesses- Credibility and able to explain facts during cross- examination at trial
- Question – what could I have done better
- Cost- not judge legal but expert, discovery, and e-discovery
- Loss of Executive Time
- Uncertainty of Result
- Issue of Collateral Estoppel
- Risk of Litigation Corporate Forms
- Risk
- of Appeal: Who won” vs. “ Who won today”
- Understanding Your Goal
- What you Want v. What you can Live With
- Control of Expectations – And Sooner Rather Than Later.
- KEYS TO FAILURE
- Lack of Preparation
- Knowing what you need
- Understanding the other party’s position/claims
- Lack of Flexibility
- Ego
- Involvement of Personalities
- ***** Walking Away from a Good Business Deal
- Persons Involved; Role Of Corporate Counsel Mediation Process
- Selection of Forum
- Lack of Preparation
- SELECTION OF RULES
- SELECTION OF MEDIATION
- Vetting not merely relying on paper credentials
- “Shuttle Diplomat” vs. “Reality checks”
- Timing- After necessary discovery
- Mutual Exchange of Mediation Statements
- Persons in attendance
- Person with authority
- Person knowledgeable of facts
- Procedure
- Use of Graphics; Understanding with opposing counsel?
- In Person or Zoom
- Procedure 1 day or 2; reserve date
- Procedure- Sign Same Day!
- KEYS TO SUCCESS
- GAME CHANGERS- WAYS TO NUDGE AN ADVERSARY FROM THEIR CLAIMS
- LIABILITY
- Contract Notice clause
- Strict Enforcement
- Liberal Enforcement
- Test as Prejudice
- Public v. Private
- Contract Finality Rules
- Decision of Architect or Engineer
- Acceptance or Making of Final Payment
- Site Inspection Rules
- “Superior Knowledge”-Helene Curtis case
- *****Implied Warranties, including:
- Duty of Good Faith and Fair Dealing
- Duty to Not Hinder
- Duty to Cooperate
- Duty to Provide Site Access
- Governing Statutes—issue of City Charters
- Cardinal Changes
- Contract Notice clause
- DAMAGES
- Liquidated Damage Clause
- No Damage for Delay Clause
- Consequential Damages
- Schedule Delay where Extra Work After Substantial Completion?
- Change Orders Dollars and Time v. Associated Impacts
- LIABILITY
- SETTLEMENT GONE RIGHT
- STATISTICS
- AAA
- Federal Court
- FINRA
- Other
- SETTLEMENT GONE WRONG-BINDING SETTLEMENT V. INCOMPLETE TERMS AND MORE LITIGATION
- EMERGING ALTERNATIVE: GUIDED CHOICE MEDIATION
- DISPUTE RESOLUTION BOARDS
- ADR- IN PERSON OR VIRTUAL PROCEEDINGS IN THE PANDEMIC- ADVANTAGES AND DISADVANTAES OF EACH
Date & Time:
Wednesday, September 23, 2020
3:00 pm to 5:00 pm (ET)
Who Should Attend:
- Contractors and Subcontractors
- Construction Lawyers
- Construction Industry Professionals
- Risk Managers
- Owners of Construction Projects
- Insurance Lawyers
- In-house Counsel
SPEAKERS
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