The difference between litigation, arbitration, and mediation for construction disputes in Ohio.

The three common methods for resolving construction disputes in Ohio are litigation, arbitration, and mediation.  In practical terms, a commercial construction company needs a construction lawyer to represent it in any of the three.  But these are the most basic differences for a construction company facing a dispute.

Litigation

By Default or Selected: Litigation is the default method of resolving construction disputes.  Unless a contract provision states otherwise or the parties to the dispute agree otherwise, all Ohio construction disputes will be resolved through litigation.  If the contract is silent on how disputes will be resolved then they will be resolved through litigation.

Common Contract Provisions: Contract provisions for litigation are commonly worded that the parties agree to litigate any disputes in the county in which the project is located and that the parties submit to the jurisdiction of that court.

Binding or Non-Binding: Litigation is a binding process, meaning that the parties are legally required to do whatever the tribunal decides should be done.

Who Administers: Litigation is conducted before a judge.  The ultimate decision is made by the judge or a jury.

Governing Rules: The rules of civil procedure direct how the parties will submit pleadings, conduct discovery, and file motions.  Once the trial starts, the rules of evidence direct what evidence is allowed to be presented.

Location: Litigation is conducted in a courtroom and is usually the court that is in the county that the project is physically located in.

Representation: Parties almost always must be represented by a lawyer to participate.

Discovery: The ability to conduct discovery is important because discovery is how a party builds its case.  Discovery is particularly important for construction disputes because there are often documents needed that only the opposing party possesses.  Discovery is necessary to obtain those documents from the opposing party.  Litigation provides the most discovery.  There will be interrogatories (written questions) to the other side that must be answered, exchanges of documents, and depositions of witnesses all to obtain evidence.

Time Frame: Litigation typically takes the longest to reach a resolution.

Arbitration

By Default or Selected: Arbitration is an alternative method of dispute resolution.  Arbitration typically only occurs if the parties agreed to arbitration in the contract.

Common Contract Provisions: Contract provisions for arbitration are commonly worded that the parties agree to arbitrate any disputes before the American Arbitration Association or JAMS.

Binding or Non-Binding: Arbitration is also a binding process, meaning that the parties are legally obligated to follow the decision reached by the arbitrator.

Who Administers: Arbitration is conducted before an arbitrator.  The arbitrator is typically a construction lawyer.

Governing Rules: The AAA construction industry rules are typically selected to govern.  The AAA rules often result in less pleading, discovery, and motions than occurs in litigation.

Location: Arbitration is usually conducted in a conference room.  It may be at the arbitrator’s law firm or another location that the parties agree to.

Representation: Parties almost always are represented by a lawyer, but it is not always technically required.

Discovery: Arbitration, depending on the procedural rules that apply, will usually provide for some discovery to be conducted but usually to a lesser extent than in litigation.

Time Frame: Arbitration typically takes less time than litigation, but more time than mediation.

Mediation

By Default or Selected: Mediation is another alternative method of dispute resolution.  Mediation may be called for in the contract or the parties may agree to mediate after the dispute arises.

Common Contract Provisions: Contract provisions for mediation are commonly worded that the parties agree to mediate their dispute before a mutually agreeable mediator before resorting to litigation or arbitration.

Binding or Non-Binding: Mediation is non-binding.  The parties attempt to reach a mutually agreeable resolution, but if they cannot agree on terms then neither party can force the other party into a deal.

Who Administers: Mediation is conducted before a mediator.  The mediator is typically a construction lawyer or retired judge.

Governing Rules: There are no official rules for how a mediation can be conducted.  The mediator is in charge and will direct the parties how to proceed as he or she sees best for the circumstances.

Location: Mediation is usually conducted in a conference room.  It will likely be at the law firm of either the plaintiff’s lawyer, defendant’s lawyer, or mediator.

Representation: Parties almost always are represented by a lawyer, but it is not technically required.

Discovery: Mediation normally does not include any ability to conduct discovery.

Time Frame: Mediation is quick.  The parties typically spend a day or a few days ahead of mediation preparing.  The mediation itself usually takes one or two days to complete.



Nick Schwandner

Nick Schwandner is a construction lawyer in Cincinnati, Ohio and represents commercial contractors in litigation, arbitration, and mediation across Ohio.