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Not to overstate the obvious, but construction projects never go entirely without a hitch. There will always be some problem, be it bad soil, bad weather, bad suppliers or bad subcontractors. Usually, these difficulties are solved cordially and professionally between the parties. The owner and the architect meet with the general contractor, they hash out a compromise and fix the problems and finish the project. While this usually involves some delay or increased cost, it is typically done without putting anyone out of business, blowing up the entire project or going to court.

It may come as a surprise, but lawyers can often facilitate this informal resolution process. Unlike a stereotypical attorney on TV, working out a solution, and not being the saboteur in the room, is what lawyers often do. They can help explain various parties’ legal responsibilities, act as buffers between parties that have difficulty communicating directly, help level the playing field for less sophisticated parties, and document agreements after a compromise has been reached. Lawyers also can act as neutral mediators to help parties find common ground, and, of course, take a dispute to the next level if litigation truly is the only option left.

To begin with, the relationship between the parties to a construction project is fundamentally a legal one, governed (hopefully) by a written contract. While owners, design professionals and contractors are often highly skilled in their businesses and crafts, they are not usually specialists when it comes to the nuances of complex contractual documents. An attorney can parse the various responsibilities of each of the parties and help analyze whose job it is to fix what is wrong. Often responsibility is shared or various parties assign blame differently, and there is always the risk of a costly extended fight if a solution cannot be found amicably. The lawyer, being a step removed from the project, can often be more objective in weighing the strengths and weaknesses of the various positions, the risks involved and the cost, while keeping the negotiations grounded in the provisions of the governing contract.

Furthermore, being less emotionally invested in the immediate disagreement, attorneys can often better facilitate communication between the parties, make proposals, and often bring innovative solutions to a dispute that the parties themselves may not have experience with or would not trust absent the advice of someone with extensive experience and whose day-to-day job is resolving construction project disputes. And, for those less experienced parties – be they owners, contractors or design professionals – having someone with years of experience dealing with construction projects and disputes in their corner can give them the needed assurances that they are not being taken advantage of.

In addition, lawyers are often hired to act as mediators, who, when positions become so intractable, often act in shuttle diplomacy looking for common ground and emphasizing the financial as well as emotional costs of carrying on or even escalating a dispute. Finally, at the end of the day, any resolution needs to be documented in writing and legally binding. Again, an attorney can be invaluable in making sure the good intentions of a negotiated resolution are properly explained in writing to protect all the parties if, yet again, problems arise.

Any owner who has had to fire a contractor, or any contractor who has had to walk away in the middle of a project, knows that the likelihood of being made whole in litigation (even if they’ve done nothing wrong) is miniscule. Litigation is often significantly more expensive than compromise. An owner or contractor may have a right to terminate the contract, but it is rarely the most cost-effective course, and hiring an attorney before a situation gets out of hand may be the wisest choice to reach the best solution.

Bill Ohle is an attorney in the Portland office of Schwabe, Williamson & Wyatt, and represents business and design professionals in the construction industry. Contact him at 503-796-2414 or [email protected].