Construction Lawyers (and Mediation) in Massachusetts
Welcome to Sauer & Sauer, Attorneys
(and, to Jonathan Sauer, Mediator)
AS ATTORNEYS
We are Jonathan and Sally Sauer, Sauer & Sauer, Massachusetts construction lawyers with offices in East Walpole, MA and in North Walpole, MA. In addition, Jonathan Sauer is a trained mediator.
Jonathan Sauer has forty-two years of experience working as an attorney with construction law, insurance law and surety issues. Sally has thirteen years’ experience working as an attorney with construction law and surety issues, along with ten years working in-house in bond claim departments for five sureties.
Our primary focus, as attorneys, is in representing material suppliers, subcontractors, general contractors and owners in a variety of matters having to do with commercial and public construction issues. Additionally, we also represent contractors and homeowners with regard to issues involved with Massachusetts home improvement contracts.
Our firm concentrates its practice with construction law and contract law issues. This includes a variety of issues associated with the public bid laws, including Massachusetts bid protests. We also file payment bond claims/suits and deal also with other principal/surety issues. We both file and defend against mechanics’ liens. (The state courts list us as a web resource on a variety of mechanics’ lien subjects and forms.)
We do a great deal of work in preparing, reviewing, negotiating and revising a variety of construction contract documents, including the preparation of custom contracts and various lien waivers/releases. We form corporations and limited liability companies for those in the construction industry. We litigate a variety of construction disputes. We especially enjoy advising contractors as to construction and business issues before they become significant problems. Whenever possible, we minimize our clients’ need to ‘get legal’ and go to court.
We have a number of articles on a variety of construction subjects on this site, which can be found under the ‘CONSTRUCTION LAW ARTICLES’ button just below this. And, we have a wide variety of construction law articles, including the review of recent court decisions, discussed in our monthly newsletter, ‘Squibs’, which can be found under the ‘SQUIBS’ button just below this. We give a series of free construction law seminars in the fall and in the spring. (If you would like to be on our list to be advised as to seminars and to receive our free newsletter, send an email or call Sally Sauer at sallysauer@sauerconstructionlaw.com or 508-668-6020.)
Our clients’ work is very important to us. It’s not shifted off to some associate with a lot less experience. (We don’t have associates.) Our pleadings are not signed by three lawyers. (Only by one). Our billing rate is realistic and significantly lower than that of Boston lawyers with comparable experience. We will provide a one-time free telephone conference to individuals and companies requesting information on a construction law issue.
JONATHAN SAUER, AS A MEDIATOR
One way to cost-effectively resolve construction disputes is to try as early in the dispute process as is possible mediation. Mediation can be roughly defined as a structured settlement conference administered by a trained neutral, who issues no decision and does not decide who is right or wrong. Rather, a mediator facilitates the reaching of a settlement, which is fashioned by the parties themselves.
Nothing is lost by trying mediation. By Massachusetts statute, everything happening in a mediation is confidential and cannot be referenced in any subsequent arbitration or litigation and is not evidence in any subsequent arbitration or litigation. Even when unsuccessful, mediation can be ‘free discovery’ because a party will generally learn through the mediation process the other side’s theories and contentions in short order without first having to undertake a lot of expensive discovery. And, the pursuit of mediation does not mean giving up any rights that a party may have with regard to the pursuit of arbitration or litigation, if such proves necessary. All such rights are fully preserved.
Speaking of which, what’s wrong with simply filing for and proceeding with arbitration and litigation (court)?
ARBITRATION has significantly greater filing fees at the American Arbitration Association, the largest private arbitration service in the United States, than does court, along with other fees not found with court actions, such as ‘final fees’ and room fees. As the amount of claims increases, the amount of the filing fee increases at the AAA. The parties pay for the arbitrator themselves, with each party, typically, paying one-half of this compensation. Most construction arbitrators charge more than $400 per hour. Arbitrators do not have to follow the rules of evidence in admitting testimony and evidence. There are almost no possible appeals from arbitrations. For one thing, the American Arbitration Association does not contain within it any appeals mechanism. And, even when the parties can demonstrate that the arbitrator didn’t understand the case or decided the case upon the wrong facts or decided the case applying the wrong law, there are, generally speaking, no appeals possible to or within the court system. Arbitrations lack the procedural protections of court. My experience has been that cases that are to be decided by arbitration settle less frequently than do court cases. This is for a number of reasons, including that parties seem to more greatly fear trials in court and think, often erroneously, that arbitration is a preferable procedure. Some critics of arbitration say that there is a tendency for arbitrators to give a claimant at least ‘half a loaf.’ This is so as to not offend the parties or their attorneys so that they won’t strike the arbitrator’s name from arbitrator lists for future arbitrations. Because there is very little discovery allowed in arbitrations, it is much more difficult to find out in advance of the hearings what the other side will say. And, not knowing this makes it harder for parties to prepare in advance of hearing rebuttal testimony.
LITIGATION can take too long, with the average construction case in superior court taking five years or more to come to trial. The greater procedural and appellate rights court procedures provide for may come at the expense of more complicated procedures. Discovery, while helpful in preparing a case for trial, can be expensive, particularly if a lot of depositions are taken.
MEDIATION. Under the ‘SQUIBS’ button, you can gain access to two of my monthly newsletters (‘Squibs’) explaining mediation. One deals with the ‘why’ of mediation. And, the second deals with the ‘how’ of mediation. In Squib #55 is “Resolving Construction Disputes Through Mediation”. And, in Squib #68 is “The Nuts and Bolts Procedure of Massachusetts Construction Mediations.”
Mediations are much quicker and a lot more economical than both arbitrations and litigations. From start to finish, the process may take two months or less. While the parties split the cost of the mediator’s compensation, most mediations will reach an end result with ten or fewer hours of a mediator’s time. (An arbitration of any significance will require several days’ worth of an arbitrator’s time.)
The mediator does not ‘decide’ the case, finding that one party is right and the other wrong. The mediator never issues any decision. Rather, what the mediator does, as a trained neutral, is to facilitate a settlement between the parties that the parties themselves fashion.
Most construction attorneys, by my experience, agree to use as a mediator a trusted construction attorney of some experience. This tends to minimize costs. There are no filing fees, no ‘final fees’ and no ‘room fees’. Typically, the parties will incur a charge from a mediator for about ten hours, plus or minus, which they generally share. The mediator that I last used was $475.00 per hour and he is a very good mediator. A ten hour charge from him would be about $2375.00 per party.
For my next six construction mediations, I offer a flat fee per party (two party mediation) of $1500.00. And, this includes without charge, if the parties wish, either an in person or an on the telephone discussion with each party separately prior to the mediation of what they hope to accomplish in the mediation. And, if the mediation requires more than the typical four hours of review of pre-submission memoranda and six hours of hearing, there will be no further charges for the mediator’s time provided that the mediation does not exceed twenty hours in total.
Massachusetts does not certify mediators. It only requires a certain number of hours of training. I have more than triple the amount of hours of training required from three excellent schools. In addition to that training, I am currently mediating disputes in the state district court system.
And, I have the experience of handling construction claims and litigations in the thousands as an attorney over a period of 42 years.
I would be honored to discuss with you in what ways I can be of assistance to you as a mediator.
