Will a flood of litigation compromise the watershaping industry's reputation and/or success -- and how might 'alternative dispute resolution' fit into the picture? Here's Eric Herman's take on both fronts.
By Eric Herman
From the “getting it off my chest” files, I’d like to face an issue that vexes the watershaping industry, and has for as long as anyone can remember. I’m referring to the culture of conflict that persists in the form of constant litigation, largely over various types of project defects and failures.
From cosmetic problems like plaster and tile failures, to catastrophic structural failures, to bodies of water that are unsafe, the ugly truth is our industry is rife with blame, conflict and liability. I base my opinion on three decades covering the many facets of watershaping, and in this case, especially, the pool-construction segment. I do not know whether or not pools are any more litigious than other types of construction, but I have been told about lawsuits for so long, so many times and by so many different people, it’s a problem regardless of how we compare to other industries.
A steady drumbeat of conflict has led to interpersonal hostility and bitter grudges, often amongst people I consider friends and close associates. It’s so pervasive that many consider expert-witness work a lucrative secondary revenue stream. For some, it becomes their one and only focus. Because the stakes are usually high for the consumer, and because pools in particular can be extremely complex with all sorts of different people and companies involved, it’s easy to see why so many lawsuits are filed and why they can be so contentious.
The unfortunate fact is much litigation stems from entirely preventable mistakes. There is no question many of the industry’s wounds have been and remain self-inflicted.
People I know who do expert witnessing believe they are, in fact, offering their services ultimately for the good of the industry overall and the interest of the consumer. In that sense, for many it is a noble and necessary service, if not a necessary evil. That I do not dispute, nor do I doubt the necessity of legal action in many situations.
Still, it makes me wonder about the negative consequences of these often-embittered conflicts, starting with the consumer perspective. Rather than enjoy the pool ownership experience, many of the industry’s customers become entangled in expensive disputes that cost big dollars, drage on for months upon months, and only lead to frustration and anger. Human nature being what it is, many people paint with broad strokes when it comes to their negative impressions of the industry at large. Litigation may work to make someone whole, but in the process the entire watershaping industry may be forever tainted in their eyes.
And, lawsuits often take a severe toll in the form of anxiety, depression, exhaustion, anger and even rage, which I contend is simply no way to go through life. Yes, there are winners so to speak, but when a situation gets to the point where the only resolution comes with the sound of a gavel, can we truly say anyone comes out ahead?
The blunt answer in all of this is builders must do a better job learning their craft and applying reliable construction methods and defensible standards. Taking courses about pool construction – like that offered by Watershape University and other sources – would certainly help. I’d go so far to say, the main reason that publications like watershapes.com exist is to identify pathways toward not only defensible, but impeccable work.
That process of elevation does mean confronting the negative to identify where things go wrong, and I cannot count the times I’ve heard tales of builders taking projects for which there simply not qualified that ultimately result in some type of failure. Whether it’s moving from residential work to commercial or from inground pools to those installed above grade inside buildings, the industry abounds with cautionary tales that some people choose to ignore.
In a perfect world, there would be far fewer causes for conflict because consumers would be going for a swim or a soak in the spa instead of calling their attorneys. That said, assuming there will always be defective projects, there might also be another answer to mitigating the long-term damage resulting from a protracted legal action. Specifically, arbitration and mediation in some cases can serve as a possible alternative.
Groups such as the American Arbitration Association (AAA) have developed procedures and standards for mediation and lists of experts in different fields that can serve as “project neutral” mediators and arbitrators. It all falls under the broad category of Alternative Dispute Resolution (ADR), the benefits of which are widely known and have been promoted for decades. Saved time and resources, more equitable outcomes based on compromise and cooperation are among the oft-touted upsides.
I’m not so naïve to think that ADR is a magic bullet when it comes to the litigious nature of construction-related disputes. I am encouraged, however, to hear from more and more builders who do say that ADR is part of their contracts and that only when the process fails does it wind up in court.
Any way you slice, it, litigation is obviously here with us to stay. By the same token, there is clearly something to be gained by going down a path that doesn’t lead straight to the courthouse door.