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Kenneth McLellan
Mandatory Mediation: Now Shake Hands and Be Friends! By Kenneth McLellan
Mediation and many forms of Alternative Dispute Resolution (“ADR”) can be helpful in addressing construction defect and construction-related personal injury cases. In my experience, the pandemic has caused parties and insurers to become more receptive to mediation in all forms, including virtual and hybrid-virtual and in-person. New York Courts encourage mediation, and, of late, sometimes even require it.
Recent Cases
One of my recent construction defect cases involved a project on the Lower East Side of Manhattan. A developer sought to demolish a number of low-rise buildings, but preserve a landmark, iconic delicatessen, and build around it a mixed-use luxury building with condominiums and a high-end gym. A neighboring building leaned over more than 4 inches during the underpinning procedure causing alleged damage and delays.
This matter was extremely contentious, and involved depositions of investors who testified from Russia. All counsel agreed that the matter would best be mediated in person. This resulted in 30 attorneys and claims people in the room, but, one of the main players, a developer, in an attempted “power-move,” refusing to appear in person but demanding to participate from his palatial Manhattan apartment. This generated the quintessential New York style interaction: Q.: “We’re all here in person. Why couldn’t you bother to show up?” A.: “Never mind where the [expletive omitted] I am! Make an offer!” After that inauspicious start to the mediation, many hours in person, and many more hours of phone calls and text messages, the matter was able to be resolved, but only due to a lot of work on all parties’ parts and the assistance of a great mediator.
Another recent matter in which I’m involved has to do with a New York State Labor Law Section 240 claim. This statute is very favorable to construction workers and renders Owners and General Contractors absolutely liable in certain situations involving “gravity related” injuries, specifically workers falling from a height or objects falling on workers. Plaintiff claimed injuries after an electrical subcontractor’s employee dropped a roll of electrical wire that rolled through an opening on the floor above and struck the Plaintiff.
Mediation resulted in all parties generally being able to come to a consensus on the
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FDCC ANNUAL FIVES 2023
Construction Law