Small Claims or Dispute Resolution Process for a Home Remodeling Dispute
My question involves a consumer law issue in the State of: Oregon
Our kitchen remodel project has turned sour. The contractor refuses to correct problems and relations are bitter on both sides. Our state Construction Contractors Board (CCB) offers a dispute resolution process for resolving construction complaints. The process involves a site visit by an investigator-mediator who tries to get a settlement between the owner and the contractor during the visit. If an agreement isn't reached, the CCB writes up its findings. It is up to the owner to get a judgment through small claims or civil court. Once the judgement is obtained, the CCB will obtain funds from the contractor's surety. Our contractor's bond is $20K. Other judgements might take precedence against the bond.
In our state, small claims are a maximum of $10K. Before having a case heard, the parties must attend a mediation session. If no agreement is reached the case is heard by a judge. All civil cases less than $50K, other than small claims, must be arbitrated. There are no trials. We are in the process of obtained estimates to fix the contractor's defect.
We would like for the corrective work to be done by another contractor, since the original contractor has demonstrated
sloppy work, performed over very drawn out periods, and is a proficient liar.
Here's my question: Should we skip the CCB's dispute resolution process and go directly to small claims court?
If we obtained a judgement we would be free to hire the contractor of our choice. My fear is that with the emphasis the court puts on mediation, we will be seen as having taken a short cut and our verdict will be reduced accordingly.
We would still like to go through the CCB process just to give the contractor a black mark on his record. However,
it will be 2-3 months before that process is completed and then we would still need to get a judgement in court. We also fear that the CCB might tend to side with the contractor based on very liberal interpretations of "acceptable workmanship". For instance, warped cabinet doors are usually considered to be acceptable, even though a judge might look at a photo of them and find them unsightly. Another criteria the CCB might use is whether is defect is noticeable from 6 feet away without supplemental lighting. The CCB's standards seem to be biased in favor of the contractor.
Re: Small Claims or Dispute Resolution Process for a Home Remodeling Dispute
Once you have your estimate, you will be able to assess whether you can live with a $10,000 cap on your recovery. It's difficult to say before then. Consider also whether you would need an expert witness (such as a licensed residential contractor) to support or prove your case or substantiate your damages, should you go to court.
Re: Small Claims or Dispute Resolution Process for a Home Remodeling Dispute
I just called up the small claims court for our county of 750,000. I asked when I could see the court in action. I was shocked to hear that the court only meets one day a week starting at 2PM. The clerk said that they usually only have 3 cases a week. "Most people mediate, or don't show up". There must be tremendous pressure to mediate, I would think. My thought of getting a hearing before a sympathetic judge seems to be a bit wishful.
Re: Small Claims or Dispute Resolution Process for a Home Remodeling Dispute
Does the judge travel from jurisdiction to jurisdiction? At the end of the day - no one really wins here because it will all be a hassle and this is because the contractor probably didn't have the requisite skills for the given job. Personally, I wouldn't want to mediate a agreement if it involved the same problem contractor. It would be like remarrying the same spouse again - and seeing the same patterns which lead to getting a second divorce.
I would want to have the judge examine the facts and render a decision. He/she probably wouldn't see warped cabinets as being acceptable. Who does? And given the case load in a one-day visit try to move on the issues in a reasonable time frame.
Re: Small Claims or Dispute Resolution Process for a Home Remodeling Dispute
BenT I think you are right about the probable outcome of a mediation. The contractor ignored our drawings for European frameless cabinets with ample drawers with very narrow reveals and gave us his bastardized version with big visible cross members with huge reveals and tiny drawers. We now have 12 drawers that we can't even get a spatula into. This shows me that he is confident in being able to bluff his customers into accepting whatever he comes up with.
He's already crowed about how the state inspector will not find a problems with warped doors or cosmetic problems which are not visible from 6 feet away. I've seen some of the criteria used by the inspectors and it's very biased in favor of the contractor. Warping of doors must exceed 1/4" and some criteria requires that the owner wait a year to see if the warp goes away by itself. I also read an inspector's report where he refused a homeowner's complaint that his new siding wasn't nailed to the studs. The homeowner had two expert witnesses who said that the nailing wasn't done right. At the time of the inspection there was a process for appeal to an administrative judge. The appeal reversed the inspector's findings. There are no longer any administrative hearings for appeal.
I attended a small claims court a few days ago to see how it worked. The judge seemed fair and didn't rush to reach a decision. I can see how critical documentation is. We're going to another small claims court tomorrow for another look.