Construction Archives - Construction Dispute Resolution

When to Mediate, Arbitrate, or Litigate: Pros and Cons

Experts In Alternative Dispute Resolution - Construction Dispute Resolution

Disputes frequently arise in construction projects. While many steps can help prevent them, construction work is complex, and issues will inevitably occur. Disputes commonly arise around payment issues, delays, defects, or changes in scope. When these issues surface, choosing the right dispute resolution method is essential. Mediation, arbitration, and litigation each serve different purposes, and understanding their strengths and limitations can help save time, money, and business relationships.

Mediation is an agreed-upon process of dispute resolution in which an appointed third-party mediator assists the parties in negotiating a mutually acceptable outcome. It is generally the least formal of the three methods and is often used early in a dispute.

The role of the mediator can vary depending on the situation. The mediator may help facilitate direct negotiations, assist the parties in identifying core issues, or learn the facts and positions of each side and provide feedback. The mediator reviews the facts and offers an assessment or recommendation focusing on helping the parties reach a compromise by identifying bottom lines and aligning priorities. The mediator’s goal is to help the parties compromise toward a central point between their original positions, determine bottom lines, and encourage both sides to reconsider their priorities.

Understanding Moisture Intrusion In Building Envelopes

The building envelope is the physical shell of a structure. It includes the walls, roof, windows, doors, and foundation—essentially, any component that separates the interior living space from the exterior environment. The condition of the building envelope directly affects interior temperature, air quality, light exposure, and noise levels. Poor envelope performance can lead to issues such as higher energy costs and moisture intrusion.

One of the most serious concerns is moisture intrusion. When water or moisture enters a building through its envelope, it can damage structural materials, reduce property value, and harm occupant health. Moisture intrusion refers to the unintended movement of water or water vapor into a building’s systems or structure. It is the leading cause of building damage and construction-related disputes. In fact, nearly a quarter of all home insurance claims are related to water damage and freezing events (Consumer Affairs – Journal of Consumer Research, 2024).

Moisture intrusion can occur in several forms. The most damaging is bulk water, which includes rainwater, melting snow, or surface runoff that penetrates the structure. Water can also enter through porous materials such as concrete, brick, or wood. For example, an improperly waterproofed concrete foundation can allow moisture to rise into adjacent walls.

Condensation is another common source—forming when warm, moist air contacts a cooler surface. This often occurs when air moves through poorly insulated or sealed areas of the building envelope. Over time, excessive condensation can lead to mold growth and material deterioration.

Several factors can contribute to a compromised building envelope. The design may be inadequate, with weak transitions at roof-to-wall joints or poorly detailed window seals. The site may lack proper drainage or layering, or workmanship may have been rushed, resulting in improper installation. Additionally, materials such as sealants or flashing can fail over time, or may have been improperly installed, allowing water to enter. Although these issues are preventable and correctable, ensuring quality construction and thorough inspection from the start should be a top priority for builders.

To prevent weaknesses in the building envelope, builders must ensure strong coordination among all trades involved in construction. This includes design reviews, pre-installation meetings, and regular site inspections to verify that work is completed properly.

Finally, there are key indicators that may reveal water intrusion within a building. Visual signs include yellow or brown discoloration on walls or ceilings, mold or mildew growth, peeling or blistering finishes, and warping or buckling of materials. You may also notice musty odors or persistent condensation in certain areas—all strong indicators of hidden moisture.

Handling Unforeseen Price Increases

Builders and subcontractors, do your contracts between you and your clients clearly state how unforeseen increases in material prices will be handled? According to an August 22, 2020 article by NAHB …”the recent spike in softwood lumber prices has caused the price of an average new single-family home to increase by $16,148 since April 17, according to NAHB standard estimates of lumber used to build the average home. Similarly, the market value of the average new multifamily home has increased by $6,107 over the same period due to the surge in lumber prices.”

This increase is calculated on the softwood lumber that goes into the average new home, such as any softwood used in structural framing (including beams, joists, headers, rafters and trusses), sheathing, flooring and underlayment, interior wall and ceiling finishing, cabinets, doors, windows, roofing, siding, soffit and fascia, and exterior features such as garages, porches, decks, railing, fences and landscape walls.

Owners Balancing Collaboration and Trust

Even before a project begins, owners can be better prepared to stay on top of the details and decision-making by having a way to organize their ideas and records. The designer, architect and contractor (the project “partners”) will need the owner’s cooperation in making decisions and choices in a timely manner, so being organized is key. With a system in place, owners will be more confident that what they have conveyed to the partners will be properly addressed. It is helpful to create a notebook to include clippings from magazines, newspapers and brochures to share design ideas with the partners. Add sections to the notebook for: 1) signed contract that includes a projected weekly schedule, 2) invoices, 3) change orders, 4) paint color choices, 5) appliance choices, 6) plumbing fixtures, 7) bids, etc.

After work begins, owners should be very mindful about any changes that need to be made in the design, work and finishes. Good records and communication will help avoid misunderstandings. Other guidelines include the following:

When a cost and contract are proposed, review it with legal and building professionals before signing.
Obtain, review, modify and sign all change orders BEFORE the work on those changes begins. Change orders can either cost more or provide a credit. Keep copies of the signed change orders.

Fluid Applied Coating Preparation

Coatings are used for moisture control and as bonding agents and weatherproofing on surfaces in new building construction and renovations. Examples of uses include decks, balconies, garage floors, roofing, above grade wall, below grade wall, and under interior floor coverings. Frequently coatings are used to prepare surfaces for finish surfaces or layers of moisture control. Surfaces to receive coatings are usually wood sheathing such as plywood or similar, concrete, metal panels or sheets, or gypsum board.

Common to most coatings is proper preparation of the surface of the substrate. Proper surface preparation supports good coating adhesion, function, performance and durability. Each manufacturer may have different recommendations and requirements for surface preparation. Three key factors common to most installations are a clean, dry and debris-free surface. Clean means no contaminants, oils, greases, chemicals or unadhered paints remaining on the surface. Dry means usually less than 5 percent moisture content before application of the coating, but this can vary by manufacturer and product. Debris-free means that foreign or loose materials must be removed. In new construction loose materials are often construction debris, dirt, dust and original systems. For an existing building renovation, debris is usually old building construction remnants, paints and adhesives.

Flat Roof Membranes

In the Pacific NW, there are many different types of roofing materials that can be applied onto a flat roof of a home or commercial building. These include metal, silicone spray foam, EPDM rubber, single ply, built up, and bitumen based. Bitumen is asphalt or coal tar based material. Single ply, built up roofing (BUR) and torch down roofing are the most common types we see installed in the Pacific NW. So what are the general differences between the common roofing types?

Single Ply Membrane Roofing:

There are three kinds of single ply roofing: 1) polyvinyl chloride (PVC), 2) thermoplastic polyolefin (TPO) and 3) ethylene propylene diene monomer (EPDM). Single ply membranes come in thicknesses between 40 mil and 80 mil, depending on manufacturer and type. Single ply can be mechanically or adhesively attached to the underlying substrates. PVC and TPO seams and laps are hot air welded or chemically bonded.

PVC and TPO membranes– are installed in rows of 6’ or wider depending on the manufacturer’s material widths. Materials are durable, provide energy saving benefits on cooling days due to their reflectance abilities and are repairable without open flames. Since the membrane is only a single layer, damage to the roofing or a poor weld may readily allow water under the roofing.

Installation costs vary by site conditions, roofing contractor, manufacturer and material type and thickness. Generally, a square foot allowance cost for labor and material may be $9 to $10 for PVC’s and $7 to $8 for TPO’s.

EPDM is a durable synthetic rubber roofing membrane derived primarily from oil and natural gas. EPDM is available in black and white and can be purchased in widths of 7.5 to 50 feet. EPDM can be installed using roofing adhesive, mechanically fastened or ballasted with gravel or rocks to hold it into place on the rooftop. Seams are sealed with liquid adhesive or formulated tapes.

International Property Maintenance Code

The 2015 International Code Council (ICC) Model Building codes for commercial and residential construction projects include the International Property Management Code (IPMC), which is designed to provide “the standards for supplied utilities and facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupation and use; and the condemnation of buildings and structures unfit for human occupancy and use, and the demolition of such existing structures as herein provided.” This and all other ICC codes are revised every three years following the ICC 3-year revision cycle.

In Washington, the State Building Code Council (SBCC) and its Technical Advisory Group reviews the ICC Model codes, holds hearings, and makes the final determination on which codes they will adopt for the State of Washington. At the local level, individual jurisdictions often adopt and amend the Codes, tailoring them to their specific needs. However, we have found that in some jurisdictions, the International Property Maintenance Code (IPMC) may not be adopted in full or even at all.

Fall Protection – Residential Construction

Falls are the most common type of injury accident on construction projects. We typically see temporary guardrails installed at heights or workers wearing fall protection harnesses with lanyards on commercial projects, but how about residential construction? It’s not uncommon to see workers on residential construction and single family home projects working unprotected around fall hazards, so are safety regulations less stringent for residential versus commercial construction? No! Fall protection pertaining to any construction work is mandated by Washington Administrative Code (WAC) 296-155, Part C-1.

Fall protection requirements are not just for hazards above 10 feet high. Floor holes and floor openings regardless of height must be guarded. Fall protection is required at the height of 4 feet or more at open-sided walking/working surfaces as well as ramps. Work activity on high slope roofs (4:12 pitch or greater) where a fall hazard of 4 feet or more exists also requires fall protection. Where employees are exposed to fall hazards of 10 feet or more, fall protection is required, as well as a written fall protection work plan.

The compliant means of fall protection are addressed in WAC 296-155, Part C-1 and include:

Fall arrest systems – Stopped after the fall with a 6 foot maximum free fall distance

Personal fall arrest with full body harness and lanyards
Safety nets
Catch platforms

WISHA Compliance Extended To Homeowners

In 1990, the Washington Supreme Court held in Stute v. PBMC1 that a general contractor could be held liable for an injury to a subcontractor’s employee that occurred as a result of a WISHA violation committed by that employee. This rule (WRD 27.00) was subsequently extended to include any upper-tier subcontractor who, like a general contractor, has a non-delegable, specific duty to ensure compliance with all applicable WISHA regulations for “every employee on the jobsite,” not just its own employees.[1] A general or upper-tier contractor is deemed responsible for protecting workers on the jobsite, including “any employee who may be harmed by the employer’s violation of the safety rules.” [2]

Subsequent lawsuits since 1990 have worked vigorously to extend this duty also to owner/developers, landowners whose independent contractors fail to comply with safety and health regulations, and now property owners and other employers, depending on the degree of control exercised and whether they control or create a hazard. Examples of criteria for determining that a property owner falls under these regulations are:

The essence of the contract with the contractor (whether written or verbal) is the contractor’s personal labor
The homeowner is in some manner controlling or directing the contractor’s day-to-day activities such as:
Directing and/or supervising the contractor on how to do the work
Setting specific work hours, like workday start and end times, or lunch or rest breaks
Controlling how payment occurs, whether monetary or another form of compensation
Supplying materials, tools or equipment required to complete work activities.

On October 30, 2016, The Department of Labor and Industries expanded WRD 27.00. The basis for this expansive duty to ensure safety for all employees and non-employees on the jobsite arises from the top entity’s (general contractor, upper-tier contractor, owner, developer, landowner, etc.) “ innate supervisory authority,” which “constitutes sufficient control over the workplace.”[3] The law determines that this entity is in the best position, financially and structurally, to ensure WISHA compliance. Because this entity has authority to direct the working conditions on a construction site, they have ultimate responsibility under WISHA for job safety and health at the job site.

Ladders On The Job Site

We have all been around and used portable ladders on project job sites but have we been doing so in a safe and code compliant manner? Ladder safety violations are one of the top ten cited rule violations during L&I inspections. As an employer, one must have a competent person train all employees in the proper use of ladders. Commercially purchased ladders (which should have a label indicating ANSI compliance) as well as field built ladders must meet the design and construction requirements of ANSI A14 ladder standards.

Ladders must be inspected by a competent person when first put into service and periodically thereafter. Any structural damage to ladder components such as bent, broken, or split side rails and/or rungs renders the ladder as unusable. Note that a damaged or defective side rail of a commercially manufactured ladder cannot be repaired by the user.

Proper selection of a ladder for intended use is required. Nonconductive type ladders need to be used where exposed electrical hazards exist. Stepladders are to be used only in the fully opened position and not as a non-self-supporting portable single ladder.