Publications

When it comes to trying or arbitrating construction cases, the traditional, formal trial format is simply impractical, cumbersome, too lengthy, and quite expensive.

In the absence of a collective or individualized agreement, how a workplace conflict gets resolved may depend on the employer’s policies. Some employers may encourage or require employees to seek informal resolutions through their supervisors or through human resources staff members.

When parties begin telling their story to the mediator, the parties gain better clarity about their case and about their adversary’s positions. A mediator will encourage robust discussion and allow each party to open up and really dig into the facts, details and law supporting their positions. In doing so, the mediator allows each party to tell their story and have their “day in court.”

While fascinating and rewarding, mediating is not as simple as it might first seem. Every mediation is different. There is an everchanging dynamic of attorney personalities, litigant personalities, legal issues, and medical issues. Mastering Mediation is a tool kit to use for varying situations.

Some of the most contentious legal disputes that confront attorneys center on valuation of property that is the subject of competing claims. Avoiding coming to grips with detailed valuation issues, and the concomitant need for expert testimony, by putting the property up for sale, and letting the market determine the value, is often not possible, or not feasible, or simply undesirable to one or more of the parties.

During my tenure on the trial bench, I always looked for ways to settle cases assigned to me. It seemed the right thing to do. That is, give the parties the opportunity to chart their own course rather than having a stranger, albeit well-meaning, to decide their fate.

There had been several motions to the court related to discovery issues leading up to my assignment. The parties clearly were having difficulty agreeing on anything and were barely civil to one another. They simply could not agree on even basic issues. You could sense the animus – the exchanges between counsel were palpable.

Healthy conflict is a productive exchange of differing ideas, that pushes us to arrive at better solutions. In healthy conflict, our minds remain open with the recognition that none of us have all the answers when questions ultimately arise. We listen to each other, compromise, and craft solutions which, while imperfect, work for all concerned. High conflict is another matter altogether.

Not surprisingly, multi-party cases typically require more time and attention than cases with only two parties, making mediation an even more attractive option.

In most commercial and international arbitrations, arbitrators must be neutral and impartial. In other words, even if the arbitration agreement permits each side to select their arbitrator, those party-appointed arbitrators must still act impartially.