Werner Sabo is a partner at the construction law firm of Sabo & Zahn in Chicago. He is also a licensed architect, having practiced architecture for a number of years prior to establishing his law practice in 1981. He is a member of the AIA and CSI, has been an officer and director of the Chicago Chapter AIA, President of the Chicago Chapter, Construction Specifications Institute, and writes a monthly construction law column for The Construction Specifier. He is also a founding member of the Society of Illinois Construction Attorneys. In 1997, the AIA elected him to the College of Fellows. His book, Legal Guide to AIA Documents, published by Aspen Publishing, is in its fourth edition. Mr. Sabo is also a construction arbitrator and mediator for the American Arbitration Association and is admitted to the federal trial bar.
James K. Zahn is a licensed architect and attorney in the State of Illinois. He is a partner in the law firm of Sabo & Zahn, concentrating in construction law and representing owners, contractors, architects, developers, engineers and other parties in the construction process. He received a Bachelor of Architecture from the University of Illinois and his JD from Chicago-Kent College of Law. Mr. Zahn is a member of the American, Illinois and Chicago bar associations, American Institute of Architects, Association of Licensed Architects, Construction Specifications Institute and has NCARB Certification. He was a past president of the Illinois Council of the American Institute of Architects and is a Fellow of both the American Institute of Architects and the Association of Licensed Architects. He is currently a resource member of the AIA National Documents Committee.
Shawn E. Goodman is a partner with Sabo & Zahn. He concentrates in litigation of all types. A graduate of the Northwestern University School of Law, he was admitted to the bar 1993. Since that time, he has practiced before local and outlying circuit courts, U.S. District Court, and various administrative tribunals. He has acted on behalf of a variety of clients including small to mid-sized businesses and individuals. He has handled all facets of litigation from pleading to motion practice to discovery to trial. The cases with which he has been involved are varied and wide-ranging and include personal injury, breach of contract, criminal defense, commercial disputes, and consumer fraud. He has represented both plaintiffs and defendants and has practiced before juries as well as judges. Mr. Goodman has also worked on appeals and has assisted in the drafting of appellate briefs.
A recent South Dakota case, Flandreau Public School District v. GA Johnson, 2005 WL 1663791 (July 13, 2005) held that, because of certain provisions found in AIA Document A201, the General Conditions, the contractor could not enforce the mediation and arbitration provisions of the contract. A dispute arose over the appearance of the interior walls of the building and the school sued the general. When the general moved for ADR, the court found that, because the dispute concerned aesthetics, the mediation and arbitration provisions did not apply, based on the following provision:
4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect ... shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
The court held the dispute primarily revolved around issues of aesthetics, thereby triggering the exception. The case apparently will be decided by the trial court instead of an arbitrator. However, nowhere in the decision is another provision of A201 set forth:
4.2.13 The Architect’s decision on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents.
This provision would seem to render the entire case moot if the architect made a decision on the claim. It was unclear as to whether the architect in this case actually rendered a decision on the aesthetic issues. It is likely other courts would not follow this case since arbitration is overwhelmingly favored and the exception would do away with arbitration of potentially significant issues. The AIA provision concerning aesthetic effect is not directed at major issues—rather, it is intended for smaller, aesthetic issues that involve little or no money. Of course, A201 does not make this clear. One option for architects is to simply eliminate this exception from the AIA document, thereby taking themselves out of these controversies.
