Construction Mediation

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Mediation can be one of the most efficient and effective tools for resolving a legal dispute. It can be especially beneficial in construction disputes.

CONSTRUCTION DISPUTE MEDIATOR IN MIAMI, FLORIDA

Mediation is one of the most effective ways to resolve construction disputes. It helps you avoid the expense and frustration of a long, drawn-out trial. In fact, all judges order both parties to try to resolve their dispute through mediation before permitting a construction dispute to move to trial. Parties are not required to come to a resolution in mediation, but they are required to try to do so.

To discuss your construction dispute options with a Miami, Florida construction mediator, call 305-448-7988 for a free consultation.

MEDIATION WORKS WELL IN CONSTRUCTION DISPUTES FOR SEVERAL REASONS.

First, utilizes the services of a neutral third-party (the mediator) to help guide the negotiation between the disputing parties. Mediators listen to each party’s argument and then help them explore the pros and cons of various resolutions. This provides flexibility and gives those most affected by the outcome control of how the situation plays out.

Mediation also helps to protect valuable business relationships. Disputes in the construction industry can be expensive and create a great deal of damage. In most cases, it will be in everyone’s best interests to try to resolve complex construction disputes as early as possible before more damage is done.

Neil Robertson’s goal is to help protect mutually beneficial relationships and resolve construction disputes as efficiently as possible.

COMMON TYPES OF CONSTRUCTION DISPUTES IN MIAMI, FLORIDA

Construction disputes tend to be incredibly complex. They might involve many parties, including business owners, contractors, subcontractors, construction managers, architects, designers, engineers, sureties, insurers, manufacturers, suppliers, lenders, consultants, accountants, etc. All of these people have a stake in the outcome of the dispute and they will likely affect how the resolution unfolds.

In most cases, construction disputes fall into one of the following categories:

  • Project Delays: Delays threaten revenue, deadlines, and overhead. They can create lost productivity, which affect both owners and employees, contractors, and subcontractors.
  • Problems with the Quality of Work: Claims related to the quality of labor or materials arise when contractors, subcontractors, or suppliers fail to meet certain standards of quality. This might include published design standards, industry standards, or performance standards.
  • Nonpayment: Claims related to nonpayment (unpaid labor and/or materials) are one of the most common sources of problems in the construction industry. These are especially difficult to resolve without the support of a neutral third party.
  • Liens and Bonds: Lien perfection and bond claim requirements tend to be complex. Not to mention the laws governing them are unique to each state. Notice requirements are incredibly strict and filing deadlines tend to be unforgiving.

LET NEIL ROBERTSON HELP

Neil Robertson is a construction mediator in Miami, Florida. His years of experience in the legal industry and working with construction clients make him a valuable resource for resolving your dispute. If you would like to schedule a time to discuss the benefits of construction mediation for your situation or you have questions, contact Neil at 305-448-7988 or email him at [email protected].

Robertson Mediation
www.robertsonmediationflorida.com

TOP 10 THINGS TO KNOW ABOUT MEDIATION

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The role of the attorney in preparing for and participating in a mediation differs from the attorney’s role in preparing for and participating in other facets of a litigation. This is so because the goals are different. The goal in a litigation is to win, however, that may be viewed in the context of the specific litigation. In contrast, the goal of a mediation is not to “win,” but rather to walk away with a negotiated agreement, which may very well be a “win” it is own right. In order to enhance the likelihood of achieving a negotiated agreement, the attorney may wish to consider doing the following in preparing for and participating in a mediation.

In preparing for the mediation the attorney should:

  • Explain to their client the weaknesses in their case.
  • Remind their client about the costs and uncertainties in proceeding with the litigation.
  • Help their client deal with and diffuse the emotional component, if any, associated with the dispute.
  • Involve their client in preparing the mediation statement to be submitted to the mediator.
  • Discuss with their client the client’s expectations in connection with reaching a negotiated agreement.
  • Discuss with their client the obstacles to reaching a negotiated agreement.
  • Discuss with the mediator obstacles that may exist in connection with reaching a negotiated agreement.

At the mediation the attorney should:

  • In the appropriate circumstances, encourage their client to speak.
  • During the joint session, the attorney should factually present their clients’ case.
  • Following the attorney’s opening statement presenting their clients’ case, the attorney should modify their role and move away from being an advocate towards becoming a deal maker.

In preparing for mediation, the attorney should explain to their client the weaknesses in their case. In some circumstances, this may be the first time that the attorney has a frank conversation with their client about the weaknesses in the case. During preparation for the mediation, the client should also be reminded about the costs and uncertainties in proceeding with the litigation[1].

During these discussions, the attorney should address what their client would like to achieve in a negotiated agreement and what their client believes are the obstacles, if any, to reaching a negotiated agreement. Having the client express their desires and obstacles are important, because if the client’s desires are not met and the obstacles not overcome, a negotiated agreement will not be reached. Furthermore if the clients’ desires or obstacles to settlement are unrealistic, this will give the attorney the opportunity to begin the process of addressing the unrealistic expectations of the client, which process will certainly continue at the mediation.

In preparation for the mediation, it is also important for the attorney to help their client deal with and diffuse the emotional component, if any, associated with the dispute that has resulted in the litigation. The attorney can assist their client in this regard by showing empathy for what has occurred and simultaneously discussing with their client the practicalities, costs and uncertainties associated with the litigation and the benefits of reaching a negotiated settlement.

My view is that the time spent on discussing settlement and settlement options in preparation for an upcoming mediation is time very well spent. It is more likely to achieve a negotiated agreement at a mediation if there have been frank and open conversations between the attorney and their client prior to the mediation which tackle the benefits of settlement and explore and structure various settlement options and/or proposals. The benefits of settlement that should be discussed with the client include the following:

  1. the client will control the end result, rather than it being left to a judge or jury, resulting in reducing the uncertainty;
  2. the continued costs of the litigation will be eliminated; and
  3. the parties will be able to move forward with their businesses and their lives, including not having to spend anymore of their time involved in the litigation. In preparing for the mediation, it is very useful to prepare a mediation statement to give to the mediator in advance of the mediation. This serves several functions. It helps the attorney and the client analyze their case. Most mediation statements presented to the mediator only reflect the strength of your client’s position and do not reflect the weaknesses. Although it is uncommon, assuming the mediation statement is submitted confidentially, pointing out the weaknesses of your case to the mediator is often a good idea.

Realistically, there is not a single case that has been litigated that does not have weaknesses, so there is no reason to pretend that your case is any different. The attorney should involve their client in the preparation and review of the mediation statement and elicit the clients’ input. This is important not only because the client may know things about the case that the attorney does not even know, which is particularly true in a case that is mediated early, but also because it invests the client in the mediation process and helps focus the client on settlement alternatives in contrast to litigation strategies. In addition, the attorney should discuss with the mediator, prior to the mediation, obstacles that the attorney perceives exist in connection with reaching a settlement at the mediation. The mediator will be interested and appreciative in hearing about the obstacles prior to the mediation and it will also provide the mediator with the opportunity to consider approaches to be used at the mediation to overcome them.

In participating at the mediation, the attorney and the client’s roles are often times much different than at trial. At mediation, assuming that there is a joint session or sessions with the mediator, the attorneys and all the respective parties, then both the attorneys and the parties should feel free to speak. In my view, if the parties are comfortable speaking, then it is quite beneficial to let them speak and I suggest that the attorney’s encourage their client’s to speak. The parties speaking gives them an opportunity to say what is on their mind and in their heart, not in a technical sense but on a human level, we have all heard stories that cases sometimes settle by just having one of the parties hear an apology from the other party. Even if it is not that simple, which oftentimes it is not, having the parties speak at the mediation, both in the joint sessions and the caucuses, is nevertheless quite beneficial. Ultimately, if a case settles at a mediation, it is because the parties were willing to settle. If the parties speak at the mediation, they feel as though they have participated in the process and have expressed their desires and wishes and they are more likely to be agreeable to a settlement.

The attorney’s role in the joint session should be to present factually and unemotionally their client’s position. This is useful for a number of reasons. Probably the most important reason for this is to have the opposing party hear your client’s position. The opposing party may have never heard it because the information that they are receiving has been filtered by their own attorney. There are also benefits in having the mediator hear the opening statements, even in the case where the mediator has received a mediation statement in advance, and more importantly, in the case where a mediator has not received the mediation statement in advance. The mediator hearing the respective positions and observing the parties reactions provides the mediator with additional insights. During the separate caucuses, the attorney should be interacting with their client. In this regard, if the mediator is caucusing with the other side the attorney should use this time to privately discuss with their client the information that has been imparted to them by the mediator in connection with the private caucus the mediator previously had with the other side and what impact this information has on their own case and on reaching a negotiated agreement.

If the separate caucus session is one in which the mediator is with the attorney and their client, then the attorney should let the mediator lead the discussions and if the attorney has any questions, the attorney should ask them and the attorney should encourage their client to ask questions of the mediator and to interact with the mediator. Once again, it is more beneficial to have the client interact directly with the mediator to facilitate a settlement agreement.

During the mediation, the attorney should consider, under the appropriate circumstances, suggesting that the principals (i.e. the parties) meet privately in an attempt to reach a tentative agreement leading to a formal settlement. This technique may prove enormously valuable, particularly when you have sophisticated parties and the dispute is not emotionally charged. After all, it is the parties who settle cases and not the attorneys, nor the mediator.

–By Marc I. Sinensky,

Marc Sinensky has approximately 35 years experience in complex transactional matters and complex commercial litigation and is a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Certified Family Mediator. The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Where the attorney is representing the plaintiff, the conversations should include discussions about the risks and difficulties associated with proving both liability and damages and collecting on a damage award, if they prevail. Where the attorney is representing the defendant, the conversations should focus upon the risks associated with a judge or a jury coming in with an unexpected large verdict. The point to emphasize to your client is that there are enormous uncertainties in leaving the outcome to others if the parties do not reach a negotiated agreement.

All Content © 2003-2012, Portfolio Media, Inc.

Sinensky Mediation
www.sinenskymediation.com

Process of Mediating Long-Term Care Issues

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For many of us, long-term care becomes necessary after a certain point. This is often treated as a last resort. Once the difficult decision is made to have a loved one admitted to a long-term care facility, other issues may arise between the family, resident and long-term care facility. Many long-term care facilities use mediation as an effective way to avoid litigation.

During mediation, the parties work together to try to arrive at a mutually agreeable solution. The mediator uses conflict resolution skills to enhance the communication between the parties. If the problem is particularly acrimonious, the mediator may separate the parties and filter the communication between them. The parties are encouraged to brainstorm solutions to the problem.

Because the mediator is chosen because of his or her subject matter expertise, the mediator will also have useful information to share with the parties that can help them better understand their case. He or she can point to recent case rulings or a similar case he or she presented, pointing out the weaknesses in the position.

The mediator serves as a facilitator between the parties, urging them to realize their own interests and reach an amicable agreement. If the parties agree to settle their case, the mediator provides a written contract that sets out the terms of their agreement. The contract can be enforced as a typical contract. If the case had already been filed in court, the agreement can be presented to the judge and made into a judicial order.

Mediating Nursing Home Care Disputes

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Families with a loved one in a nursing home may wind up in a legal dispute with a nursing home. When this occurs, the parties can work together toward a mutual solution or they can head toward the contentious and expensive process of litigation. Mediation helps the parties work together and avoid expensive court proceedings. Here are the basics that you need to understand about the mediation process in the nursing home setting.

Issues that Can Be Resolved with Mediation

There are a variety of legal issues that can successfully be resolved with mediation, including:

  • Care provided
  • Services made available to patients
  • Billing issues
  • Financial matters
  • Allegations of nursing home abuse or neglect

Mediation may be entered into voluntarily by the parties or it may be required based on the nursing home contract or the court’s order.

Mediation Process

At the beginning of the mediation process, the parties select an objective mediator. This allows them to select a mediator with subject matter expertise, such as someone who has worked in nursing home administration or a previous nursing home abuse or defense lawyer. The parties sign an agreement for mediation. What they discuss during the process is confidential and cannot be repeated or used against the other party if they are unable to reach a settlement.

The mediation process begins by the mediator explaining the rules of mediation. He or she describes the mediator’s role as a third-party neutral who will try to facilitate a settlement between the parties. He or she does not represent the interests of either party. The mediator will establish ground rules for interacting. The parties will then have their chance to provide an opening statement about their case. The parties will then work toward a resolution of the legal issues involved in the case either in the same room or separately with the mediator shuttling back and forth between the parties.

Why Mediation is a Good Option for Separating Families?

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When couples decide to end their marriage and families are forced to separate, it is difficult for everyone. Though it might seem as though the only people are affected are the spouses, the end of a marriage means changes for everyone. Even under the best of circumstances it is a tough transition, but a long, drawn-out court battle makes things even worse.

Luckily, there is an option available that can help families transition from marriage to separation with less stress, less animosity, and less disruption in life. Mediation is a tool that makes ending a marriage as easy as it can possibly be and makes it possible for the family to move forward into a new way of relating to one another.

What makes mediation so perfect for separating families?

Mediation is Built on Communication
One of the most important reasons why mediation works so well when families are separating is because it keeps the lines of communication open. A mediator is a third-party facilitator who is working for both spouses, as opposed to representing one or the other.

A mediator’s goal is to help a separating couple find a solution that both are happy with. The way this is done is by bringing the couple together to explore all potential outcomes and weigh the pros and cons of each outcome. Everyone is encouraged to share his or her concerns and discuss why solutions seem fair or unfair. The mediator oversees these conversations and keeps the process on track.

Mediation tends to cut down on the discussions that go astray and get mired in resentment and ill-intentions. There is a well-defined goal at the beginning of mediation and someone is there to keep the goal on track.

The problem-solving strategies used in mediation can also be useful as a family moves forward into their new way of living. Many couples find that once their separation is finalized and they are forced to co-parent the methods they learned in mediation are an effective way of resolving differences that arise.

Control of the Situation
When decisions about separation and divorce are made in the courtroom the family has very little control over what happens. They might be able to share how they feel, but ultimately it is the court making the final decision.

This is not the case with mediation. The process puts a separating couple in complete control of the process and the outcome. Mediations are not considered successful unless both spouses walk away from the situation satisfied with the arrangement.

Mediation also ensures that children have an opportunity to share how they feel when it is appropriate.

The spirit of self-determination makes the transition from marriage to separation easier on everyone.

Even with all of the benefits, mediation is not perfect. A marriage is still ending and that is never going to be easy. It is also not the right tool for everyone to use, especially if a marriage involved abuse or one party is unwilling to accept the end of the relationship. Assuming mediation could provide a method for helping a family to separate, it is often the best option available.

Juan Pyfrom
Family Mediation
neutralcorners.org

Unique Challenges in the Health Care Industry and How Mediation Can Resolve Conflict

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Unresolved conflict in the health care setting can lead to significant challenges in this industry. Being aware of these challenges and alternative forms of dispute resolution like mediation can help.

Conflict in the health care setting can result in significant expenses, both direct and indirect. If the case is litigated, there will be additional legal fees that the health care facility will have to pay. Additionally, unresolved conflict can affect patient satisfaction, occupancy rates, workers’ compensation and disability claims, increased turnover, and decreased employee morale, an increase in clinical errors and a disruption of management time. Negative publicity can further negatively affect the health care setting.

Confidentiality is another concern in the health care setting. The staff may not be able to freely disclose relevant medical information to all interested parties. This may create an additional barrier to resolving conflict. Additionally, the health care setting may have time constraints that impact the ability to wait for litigation to finalize in order to resolve the problem. Additionally, situations involving conflict in the health care setting often involve emotionally charged situations.

Many physicians and nurses do not have significant training in negotiation, conflict resolution skills or communication. The mediation process allows an expert in these skills to help facilitate an agreement. A mediator can work closely with the parties, inform them of misconceptions and help uncover hidden interests to help the parties more agreeable to a cooperative solution. Additionally, mediation addresses many of the challenges involved in the healthcare setting. The parties can agree to keep the proceedings confidential so that there is not negative publicity or an invasion of the patient’s privacy.