Understanding Florida Construction Arbitration Typical construction and design agreements contain mandatory arbitration clauses.  There are pros and cons to arbitration, and parties should carefully consider them when negotiating these agreements. For instance, one of the benefits of arbitration is that the parties select the decision-maker(s) who will ultimately determine the outcome of their dispute. [1]Most...Read More

Unlike insurance policies which protect insureds from fortuitous events or accidents that arise during performance of the work, performance bonds are contracts of suretyship. They guarantee to the named obligee, usually the project owner, that the project will be constructed in accordance with the plans and specifications for the contract price within the contract time....Read More

Payment bonds, which generally exempt real property from construction liens, protect those parties (except the contractor) who furnish labor, materials, and/or services on a project.  Before a project commences, the owner may require the contractor to furnish a payment bond pursuant to section 713.23, Florida Statutes. In order to exempt the property, the payment bond...Read More

All About Florida Construction Insurance Coverage and Bad Faith Claimants considering initiating a defect claim are often faced with the prospect that the responsible party may not have the financial ability to pay a claim, or sufficient assets to satisfy a judgment in the event the claimant prevails. It therefore becomes even more critical to...Read More

Insights on Florida Construction Defect Claims Defect claims may be prosecuted under various legal theories such as: breach of express or implied obligations of a contract; contractual indemnity; breach of warranty; common law claims such as strict liability, negligence, indemnification, contribution, fraud, fraudulent misrepresentation, fraudulent inducement, negligence misrepresentation, nondisclosure under Johnson v. Davis; and statutory...Read More

Understanding the Recent Florida Mediation Trends An important aspect of trying to settle a dispute is the flexibility (or lack thereof) of the mediation participants. No matter how good the attorneys and mediator are, if the parties are unwilling to compromise, the mediation process will be unsuccessful.  Sometimes a good settlement may look different (even...Read More

Every attorney representing a plaintiff (this mediator included) has told a defendant that, in addition to the claim amount, the plaintiff is demanding its attorney’s fees and costs in the litigation. As parties and attorneys know all too well, the costs of litigation, particularly in a complex, multi-party construction defect litigation, can be significant, sometimes...Read More

The Importance of Managing Clients Mediation Expectations The importance of managing client expectations before mediation cannot be understated. In the claimant’s mind, the defendant should pay everything (principal, interest, fees, and costs) while the defendant believes it should pay far less. Convincing either on the day of mediation to fundamentally change that perspective is nearly...Read More

What You Need to know for Mediation Day Planning If a fact or legal position is important, the other side should not be learning about it for the first time at mediation. Rarely if ever in this mediator’s experience has a party changed their position 180 degrees based upon the other side’s revelation of something...Read More

Understanding a Florida Mediator’s Role Equally important to the merits of a case is how that information will be communicated to the opposing side and the mediator’s role in the process. There are some things better left unsaid during the open session(s) that should be communicated to the opposing side by the mediator in private....Read More