Wisconsin has a “Right to Cure Law” that, according to the state Department of Commerce, “provides timetables and steps to help solve disputes and misunderstandings between consumers and contractors related to residential construction and remodeling, before going to court or arbitration.” I have litigated or arbitrated enough home construction defect claims to conclude that the law is not helpful in resolving such disputes. In fact, the law essentially does three things:
- requires contractors to give notice of the provisions of the law to consumers before beginning construction;
- if the contractor gives the consumer the appropriate notice and the consumer gives the contractor notice of any alleged defects in workmanship or materials, the contractor then has the right to cure the defect or otherwise respond to the claim;
- if the consumer does not follow the steps and abide by the timetables provided by the law, the contractor can have a court dismiss or stay any litigation or arbitration initiated by the consumer.
Thus, the law merely requires an unsatisfied consumer to jump over a set of hurdles before pursuing a legal remedy in court or arbitration. It does nothing to promote successful communication or dispute resolution.
I am sure that many, if not most, consumer complaints against home builders or remodelers are resolved without resort to litigation if the parties are communicating successfully. If they are not doing so, they will need the help of a skilled independent communicator—i.e., a mediator—in order to avoid misunderstandings and litigation.
This is not a criticism of the Wisconsin courts, the legislature or the Department of Commerce. They have every right and reason to prescribe procedural prerequisites to commencing litigation. But they cannot prescribe outcomes, nor can they facilitate successful communication. That is the role of the mediator.