There are two sides to every story—except when there are three or four, says Paul Joseph Weinberg, an Irvine, Calif., mediator who specializes in cases involving architects.
Sometimes, an architect is in the middle of a project and isn't getting paid. Other times, after a project is complete, the owner is unhappy about a defect (real or imaginary) and wants the architect to pay. (In those instances, engineers and consultants may also find themselves on the hot seat.)
Weinberg says mediation is a way to settle a dispute before “the litigation machine gets going.” He invites the parties to his office at the same time, though he may keep them apart while practicing “shuttle diplomacy”—moving from room to room as he hammers out an agreement. “Often, the parties settle without ever actually seeing each other,” says Weinberg, who went from practicing law to mediating in the 1990s.
Among the advantages of mediation: “People are generally a lot happier with a settlement they have negotiated themselves,” he says. “They keep control, and it remains private.”
1. Make sure your contract calls for mediation.
Unlike some state architecture board contracts that require mediation, AIA form contracts merely recommend it. If your lawyer is writing a contract from scratch or modifying an AIA contract, make mediation mandatory. Otherwise, Weinberg says, your opponent is free to initiate litigation, which can be a way of forcing you to settle on unfavorable terms.
2. Hire a lawyer.
Your opponents will be represented: Clients often hire high-priced counsel, and contractors generally have insurance company lawyers. Architects are particularly vulnerable, says Weinberg, because, however talented, they may have a hard time describing their process in words. So hire a lawyer. And then be forthcoming; the more you tell the lawyer, the easier it will be for them to represent you.
3. See who else might take responsibility.
Many times, if there's a problem with a building, an engineer or other consultant should bear the responsibility. Weinberg says, “Let's say you designed a nice house, but it's at the bottom of a hill. Your design didn't take into account the off-site topography. Drainage problems result. But you incorporated a grading and drainage plan drawn by a civil engineer hired by your client. If you can show that you didn't deviate from that plan, the engineer—not you—may have to pay.”
4. Don't throw anything away.
Most of the time, says Weinberg, disputes involve disagreements over how events unfolded. The best thing you can do is put in order all of the plans and other documents, including printouts of e-mails, so you can establish the chronology. You probably have more documents in your file than you think you do, says Weinberg. The documents will show that you were responsible and thorough.
5. Bring a book or a sketch pad and some patience.
The mediator will be spending lots of time out of the room—often lavishing attention on whichever party is hardest to deal with. Some people need time to vent before they can settle, says Weinberg.
6. Sign before you leave.
If the parties come to terms, the mediator will produce a settlement agreement. Stick around and sign it on the spot. “If people leave the room, they tend to get buyer's remorse—they start to think they might get a better deal with litigation,” says Weinberg. “In reality,” he says, “they almost never do.” Especially if you consider the time lost from work and the cost and stress of going to court.
Fred Bernstein studied architecture at Princeton and law at New York University and writes about both subjects.
