Tag: Construction Defect

Podcast – Final question: Mediation is conflict at its best.

What do you mean when you say: Mediation is conflict at its best? This was the final question Chris Knutson, PE asked in our podcast from Stuttgart, Germany. The podcast was a wide ranging discussion of how civil engineers could use mediation to resolve disputes in construction.

Here are the links to the Podcast:

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iTunes link

The final question of the podcast that Chris Knutson, PE asked:

What do you mean by the byline on my website: “Mediation is conflict at its best”?

To answer that I will have to give you a little history. Throughout history societies have developed and used mediation to resolve problems. Somehow in the last hundred years the USA has only focused on litigation to solve problems. That is why we are considered a very litigious society.
In the sixties, the hippies rebelling against the “Establishment”, rediscovered mediation as a means to solve problems. Their intent was to eliminate all conflict. Don’t forget the whole idea was to have peace.
Around the same time the business community (and I lump engineers into this group), were facing an average time of five years of litigation just to get to trial. This was expensive and counterproductive. They also started to experiment with mediation as a way to quickly resolve disputes. They also recognized that you could never get rid of all conflict you could only manage conflict in better ways.
For myself, mediation does have conflict in it that must reach a conclusion. But it is controlled so that it does not get out of hand. A better solution comes from the recognition that conflict is part of our lives and that through mediation you can control the outcome of the conflict. Therefore: Mediation is conflict at its best.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Podcast – Does Mediation solve Civil Engineering and Construction disputes?

Chris Knutson, P.E. of the Engineering Career Coach questioned me: Does Mediation solve civil engineering and construction disputes? While he was in Stuttgart, Germany and I in California we tackled that question and more. With over 750,000 downloads under their belt, I was honored to answer their questions.

Here’s the links to the podcast.

Web Down Load

iTunes link

Here are more detailed answers to some of their questions:

From your experience, how successful is mediation for resolving civil engineering and construction disputes? What happens if a mediation doesn’t produce an agreed upon resolution?

I’m a little bias in my response. I find mediation to be very successful in resolving disputes.
If the mediation does not create a settlement that is satisfactory to all of the key decision makers, it has reached an impasse. At that point, we might try to create a partial agreement. If not a partial agreement, we might schedule another mediation session. I will do follow up to see if the parties can come to an agreement or schedule another session. I am finding that it is common to have several sessions particular in complex cases. Without an agreement, it is as if the mediation never took place. The parties are free to seek other solutions to the dispute.

What does a mediation look like…who’s involved…what might one expect as it unfolds? (In other words, who hears the mediation, who is typically involved, how long do they typically last)

First of all, the mediator is not a judge. All of the stakeholders/decisions makers need to hear all sides off the dispute and solve it on their own terms The mediator is there to facilitate the process.
The mediation really starts with the first contact to the mediator. There may be multiple conversations jointly or separately with the mediator before the mediation session. This period of time also includes a mediation brief outlining each party’s description of the dispute, plus their goals and needs.
On the day of the mediation, I usually begin with a group session where I outline the process that we will engage in during the day. We also start with introductions of the parties and a statement of their opinion of why we are in a dispute. We also start to develop a complete list of issues that need to be resolved.
At some point, we will break out in separate rooms so that I can have private conversations with each party. This will continue until we develop a settlement agreement.Less complicated issues can take a day or less. The bigger the project and the more stakeholders involved will lengthen the time to reach an agreement. It might be several days.

What are some of the qualifications a good mediator?

• Able to quickly build trust and confidence.
• Excellent inter-personal skills: Patience and a sense of humor.
• Creativity in assisting parties and counsel in shaping a solution.
• Willing to do everything they can to encourage and assist in settlement.
• Being prepared for your mediation.

How does a mediation start? Does it have to be included in a contract to be a method of conflict resolution, or can both parties agree to follow it versus litigation or arbitration?

Mediation can be done at any point in the dispute.
• It can be pre-litigation. In other words, no lawsuit has been filed. If there is a dispute resolution board put into place, it will happen throughout the project as needed.
• Mediation can run parallel to litigation and arbitration. And can even be done post judgment.
• It does not have to be part of the contract. If it is part of the contract, the contract should spell out how mediation is started.
• If the contact specifies a specific provider that is not necessarily final. If the parties agree, you can use another provider such as myself.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Podcast – How do engineers prepare for mediation?

How does an civil engineer prepare for mediation? With over 750,000 downloads of the Engineering Career Coach’s podcast, I was honored to be interviewed regarding the use of mediation in civil engineering and construction disputes by Chris Knutson, P.E.

The link to the podcast:

Web Down Load

 iTunes link

It was a wide ranging interview and all that we talked about couldn’t be included in the podcast. Therefore the following is a more detailed question and answer:

What sort of civil engineering or construction disputes typically go to mediation? What type of disputes would you say aren’t right for mediation and are better handled through litigation?

Let me answer that in a roundabout way.
In Fresno, California there is a court sanctioned program to mediate between the victims of crimes and the criminals. It is called a Victim Offender Reconciliation program. It is used to determine sentencing.
A friend of mine is working in maximum security women’s prison teaching mediation techniques to the women sentenced to life so that they can mediate disputes within the prison.
Last year I mediated a case in which the underlining dispute was murder.
None of these have anything to do with engineering, but I don’t see any engineering dispute more difficult to resolve. I routinely deal with these types of disputes: employment, contract, professional liability, construction defect, and environmental issues.

How many parties can participate in meditation? Are each represented by their own counsel?

The simple answer is that all of the stakeholders in the dispute should be present. More specifically, each stakeholder’s decision makers should be present.
The key purpose of mediation is for you and your opponent to tell their story as to why we are here at mediation. Everyone needs to see the other side; to listen to them; and to be heard by them. Don’t forget that body language also communicates aggressiveness or sincerity in finding a solution. All sides need to see and make a connection with each other. Communication is key to finding a solution.
Others that may attend the mediation are the experts. They can be present to give analysis so that each side can judge the credibility of the others experts. You might also have financial accountants and tax advisers depending on the nature of the dispute. In more complex cases you might have computer simulations. Basically anyone who can assist your attorney in convincing the other side to your point of view should be part of your team.
Usually, each side has legal representation. Do not forget insurance representatives. Make sure to involve them.
Other candidates for attendance:
• Insurance adjustors
• Cumis counsel
• CEO and/or HR Director
• Silent partners in business
• Investors
• Overseas stakeholders

How does a firm, or an individual, prepare for a mediation?

There are four major steps in preparation for mediation.
Preparing yourself, your Expectations and Realities.
• You need to recognize that mediation may be your “best and only day in court.”
• What do you intend to communicate at the mediation session?
• Determine the goals, needs and interests.
• Determine the Risks v. Benefits – emotional and economic.
• Determine “Best alternative to a negotiated agreement.” and “Worst alternative to a negotiated agreement”.
• Develop different “settlement scenarios”.
• Finally – recognizing the other side’s interests.
Preparing your attorney
• Defining the issues with them
• Make sure you both understanding the facts and the law.
• Prepare a decision tree analysis, if helpful.
• Find out how your attorney wants to show case you. This is important if the other side has never met you.
Preparing the Opposition Attorney, Adjuster, CEO or Other Decision-Makers/Stakeholders
• Don’t burn bridges! Be polite and collaborative. Seek a “win-win” solution.
• Recognize that they are key players, have egos and have to justify any settlement with their bosses.
• Make it easy for them to give you what you want. Don’t hide anything.
• Provide all decision-makers with enough information well before the mediation session. Tell them what you want and why you want it.
• Send copies of the mediation brief and other information to them with the request that it is sent to the adjuster and/or other stakeholders.
Preparing the Mediator
• Educate me!
• Be willing to engage in pre-session teleconferences. Remember mediation is a process, not an event.
• Make sure that the right people attend.
• What discovery issues still remain unresolved?
• Who do you want the opposition to bring to the mediation? The mediator may not be aware of the silent stakeholder or cumus council.
• Consider site visits and other pre-session preparation. And that the mediator may talk to the adjustor, other stakeholders or witnesses.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.