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MEDIATNG CONSTRUCTION DISPUTES: Perspectives from the Mediator

MEDIATNG CONSTRUCTION DISPUTES: Perspectives from the Mediator. W. Jerry Hoover Attorney * Mediator * Arbitrator October 26, 2007 2007 HBA Advising Construction Clients Institute. Timing: When Do You Mediate a Construction Dispute?. Pre-litigation? Post-petition? Pre-discovery?

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MEDIATNG CONSTRUCTION DISPUTES: Perspectives from the Mediator

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  1. MEDIATNG CONSTRUCTION DISPUTES:Perspectives from the Mediator W. Jerry Hoover Attorney * Mediator * Arbitrator October 26, 2007 2007 HBA Advising Construction Clients Institute

  2. Timing: When Do You Mediate a Construction Dispute? • Pre-litigation? • Post-petition? • Pre-discovery? • Post-discovery? • Pre-trial? • Post-verdict? (appeal)?

  3. SAMPLE ADR CLAUSE(MEDIATION): “In the event of a dispute or controversy arising out of the interpretation or performance of this Agreement, the parties hereto agree to submit any and all disputes to mediation before a mutually agreed upon neutral third-party mediator prior to either party filing a demand for arbitration or a lawsuit in a court of competent jurisdiction. The fees and expenses of the mediator will be borne equally by the parties, and the mediation will be conducted in Houston, Texas. If the parties cannot mutually agree upon a mediator, any sitting Civil District Court Judge in Harris County may appoint one. If a party refuses to mediate within thirty (30) days of a written request to mediate by any party to this Agreement, then the non-participating party at mediation may not later recover its contractual or statutory attorney fees in a cause of action seeking relief or legal remedies for the matter giving rise to the mediation request.”

  4. SAMPLE COURT ORDER

  5. Do’s Bring a decision maker Bring a damage model Keep an open mind Give your best efforts to evaluate the case for settlement purposes Consider Med-Arbs in smaller cases Don’ts Negotiate prior to the mediation Schedule one-half day mediations Exhibit litigation Rambo tactics Let your client spend more in legal fees than the value of the case Throw the towel in early. Ten (10) Mediation Do’s and Don’ts

  6. MEDIATION DO’S • BRING A DECISION MAKER

  7. MEDIATION DO’S • BRING A DAMAGE MODEL

  8. MEDIATION DO’S KEEP AN OPEN MIND!

  9. MEDIATION DO’S GIVE YOUR BEST EFFORTS TO EVALUATE THE CASE FOR SETTLEMENT PURPOSES.

  10. MEDIATION DO’S CONSIDER MED-ARBS ARBITRATION IN SMALLER CASES

  11. MEDIATION DONT’S NEGOTIATE PRIOR TO THE MEDIATION

  12. MEDIATION DONT’S • SCHEDULE ½ DAY MEDIATIONS

  13. MEDIATION DONT’S EXHIBIT LITIGATION RAMBO TACTICS

  14. MEDIATION DONT’S LET YOUR CLIENT SPEND MORE IN LEGAL FEES THAN THE VALUE OF THE CASE

  15. MEDIATION DONT’S THROW IN THE TOWEL EARLY

  16. ETHICAL CONSIDERATIONS AT MEDIATION • CONFIDENTIALITY • SOME ETHICAL DON’TS

  17. CONFIDENTIALITY TRUE OR FALSE? “Anything we discuss at mediation is privileged and confidential.”

  18. NOT TRUE!! Anything said at mediation that is later discoverable, is not confidential. Clarification: Anything discussed at mediation relative to “settlement” matters (dollars, demands, offers, bids, brackets, settlement terms and conditions) is confidential and may not later be discussed in front of the judge, jury or arbitrator.

  19. CONFIDENTIALITY 12. CONFIDENTIALITY. Confidential information disclosed to a Mediator by the parties or by witnesses in course of the mediation shall not be divulged by the Mediator. All records, reports or other documents received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorneys’ fees, incurred in opposing the efforts to compel testimony or records from the Mediator.

  20. WORD TO THE WISE Be certain that if you discuss any confidential information with the mediator in private caucus, that he/she knows it before he/she leaves your room. Do not assume the mediator can distinguish between confidential and non-confidential information.

  21. Some Ethical Don'ts • No Personal Service at Mediation • Don’t Threaten to Call the DA’s Office or Threaten Criminal Prosecution.

  22. “In the midst of difficulty…there lies opportunity.”Albert Einstein

  23. “MargaritaVille is wherever you want it to be.”- Jimmy Buffet, Coral Reefer Band

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