Effective Mediation Techniques in Complex Multiparty Synthetic Stucco Cases - Chapter 39 - AAA Handbook on Construction Arbitration and ADR - Third Edition
C. Allen Gibson Jr.
C. Allen Gibson Jr. is a Partner in the Charleston, S.C. office of Womble Carlyle Sandridge & Rice, LLP. He serves on the American Arbitration Association’s roster of mediators and arbitrators. He is a past Chair of the ABA Forum on Construction Law and the current President of the American College of Construction Lawyers.
This chapter offers a proven technique for mediating a type of complex construction dispute, often involving home owners, that was very common in recent years. These cases involve the application of allegedly defective synthetic stucco to residential or commercial buildings. Like other complex disputes, the parties in these stucco cases often have differing interests. Because they are not usually bound by arbitration agreements, the dispute invariably ends up in litigation. I became involved as mediator in many of these cases when they were referred to mediation by the court or by agreement of the parties. While this paper focuses on the synthetic stucco cases it is also applicable to any series of cases in which there are a common set of defendants.
The plaintiff in these cases is almost always the owner of the affected residence or building, which often appears to be problem-free based on a visual inspection of the exterior. However, forensic investigation frequently reveals that unseen water intrusion has occurred and that a myriad of problems exist within the walls of the structure. It can be difficult to precisely determine the cause of the leaks, so plaintiffs will generally sue a number of parties who were involved with the construction of the structure.
The usual cast of defendants includes the architect, the general contractor, the manufacturer of the synthetic stucco and the subcontractor