CONFLICT RESOLUTION & MEDIATION FOR CONTRACTORS
The Contractors Resource Group offers Construction Mediation & Conflict Resolution for:
Contractor to Contractor
Sub-Contractor to Contractor
Contractor to Sub-Contractor
Client to Contractor
Contractor to Client
Are you currently in the middle of some conflict or mis-understanding regarding your Construction project in the Greater Sacramento area? We understand how easy it is to have a project going along so well & all of a sudden, what seems out of nowhere all hell breaks loose! If this is where youre at, Please feel free to EMAIL your complaint to us & we will see how we can assist you to resolve the conflict youre currently experiencing, or call us for a FREE 15 minute phone consultation @ (916) 247-3506.
The Contractors Resource Group assists in mediating between Contractor to Contractor & Client to Contractor when problems & issues arise both during & after the project is completed. We specialize in Construction related complaints, conflict resolution & mediation for Construction related problems.The CRG will meet with both sides to hear both sides of the story & come up with a winning resolution for both parties at a fraction of the cost & time of an Attorney & going to court. Please feel free to EMAILyour complaint to us & we will see how we can assist you. The fees for tis service vary depending on the complexity & size of the issues, our fees start at $250.00 to settle an issue over the phone to $2500.00. Feel free to EMAIL us a descriptuion of the issue & our Mediation department will provide you our fee to assist with resolving the issues.
MOST ISSUES CAN BE RESOLVED OVER THE PHONE & AS LOW AS $250.00
CALL US @ (916) 247-3506 FOR A FREE 15 MINUTE PHONE CONSULTATION
ABOUT CONSTRUCTION MEDIATION
Construction Mediation is cost-effective, timely, and confidential. Litigation can cost tens of thousands of dollars & take quite a time to resolve. By participating in Construction mediation, you can save money & settle the issues quick. A resolution can usually be found in just a few 2-hour sessions. Your matter can be finalized within weeks or months as opposed to years. Some issues can be resolved & settled for as low as $250.00 & as quick as 1 business day. All issues discussed in mediation are confidential. Confidentiality allows the: Contractor,Sub-Contractor,Client or Homeowner to speak freely and openly in a comfortable, private environment, which greatly enhances the opportunity for a successful resolution.
Construction Mediation is effective; because it allows participants to be involved in creating their resolution, permitting more control. Construction Mediation has a tremendous success rate, and is one of the most effective methods for dispute resolution. Mediated settlements are specifically designed to the situation giving personalized consideration to the parties involved. Courts may not consider all of the issues participants can explore through mediation.
The Mediation Team at The CRG are impartial, neutral and unbiased, never advocating for one party over another. Once parties have agreed on a resolution to their dispute, the resulting agreement is put in writing and signed by all parties. Upon execution, as in Court, it becomes a binding, legally enforceable contract.
Nationwide statistics show mediation is quicker and less expensive, promotes defining and clarifying issues and alternatives, creating an atmosphere for resolution. Mediation has a remarkable success rate that exceeds 90%.
CALL US @ (916) 247-3506 FOR A FREE 15 MINUTE PHONE CONSULTATION
CONTRACTOR, SUB-CONTRACTOR & HOMEOWNER CONFLICT RESOLUTION
If you should you have a problem with your Contractor, Sub-Contractor or Homeowner , let the professional Staff at The CRG assist you. You have several different ways to resolve the disagreement. First, address the issue by explaining your concerns and requesting information from the other parties involved. Give the (Contractor, Sub-Contractor, Homeowner) a chance to explain his (her) side and, if necessary, remedy the situation. Follow these steps to try to resolve your issue:
- Identify the problem. (Thats a big one. This is where you need to be clear with what the problem is)
- Recognize all solutions and prioritize them
- Analyze the potential solution
- Select the best solution. Confirm that the agreement is acceptable to all sides.
- Try to come up with a win-win solution.
In assuming problem resolution, follow these tips:
- Listen to each other completely before speaking
- Try to put yourself in their shoes. See it from their perspective.
- Encourage ideas
- Identify ideas that provide solutions
- Seek mutual understanding
- Consider having the Contractors Resource Group assist you
If a solution cannot be attained, contact the Contractors Resource Group @ (916) 247-3506. If you feel the project should not proceed any further, discuss with the (Contractor, Sub-Contractor, Homeowner) how it might be closed and what payments or refunds remain outstanding. The last course of action is to file a lawsuit. Lawsuits are expensive, in both time and money. Also, if your the Homeowner, you may have to find another contractor to finish the job while you wait for your litigation to be resolved. Failure to pay a contractor can have negative consequences. In some cases, lien rights can be exercised on your property until payment is received.
Contact the Contractors Resource Group today EMAIL or (916) 247-3506 for a FREE 15 phone consultation to see how we will be able to assist you resolve your issues.
Mediation of Construction Disputes
by Arthur L. Tarlow, Esq.
There are several reasons why mediation is an increasingly popular process for resolution of construction disputes. Mediation is a response to the financial cost and emotional stress to contractors, owners, developers, design professionals, and others who resort to arbitration or litigation to resolve their construction disputes. All too often, arbitration is not a low-cost alternative to litigation as a means of dispute resolution. In either arbitration or litigation, a third party or parties determines the resolution of the claim. Owners and managers of involved companies not only lose control of the cost of resolution of the dispute but also the decision-making process. Except for the unusual circumstance, business relationships are severed, seldom to be reestablished. Mediation is a confidential process and the parties and their lawyers are required to sign an agreement to that effect. Mediation allows the buisness executive to minimize legal costs, control the decision-making process, avoid most of the emotional stress, maintain business relationships, and provides the most rapid process for full and final resolution of disputes. Critically important in choosing a method to resolve a construction dispute is the fact that success rates in mediation exceed 80%.
Mediation Distinguished From Arbitration and Litigation
Both arbitration and litigation are binding procedures while mediation is non-binding. This crucial point is still not well understood by either the buisness or legal community. Since mediation is not binding, the business executive retains control over the scope, amount, and details of resolution of the claim. Frequently, the resolution includes elements which would not be achievable in either arbitration or litigation. Since mediation is not binding, the familiar ex parte rules are not applicable. All parties should be encouraged to make contact with the mediator in whatever frequency and method creates comfort and confidence in the mediator and the process. Experienced advocates encourage their opposition's ex parte contact with the mediator, knowing that the greater the confidence the adversary has in the mediator, the greater the likelihood of final resolution. These advocates are also comfortable that an experienced mediator will retain his or her impartiality throughout the mediation process.
Agreeing to Mediation and Selecting the Mediator
The Contract Clause
Mediation can occur by contractual requirement or agreement after a dispute arises. Sharing costs of mediation is important to a successful resolution whether the cost sharing is contractually required or agreed to after a dispute arises. Both parties must have a financial and emotional stake in a successful resolution of the dispute through mediation. Careful contract drafters will require mediation in their home city to reduce their own costs of resolution. While there are no known decisions enforcing a mandatory mediation clause prior to arbitration or litigation, the current judicial climate strongly encouraging mediation should be sufficient basis for enforcing the mediation clause.
After the Dispute Arises
At any time after a dispute arises, including after trial or during the appellate process, mediation may be agreed to and conducted. An agreement to mediate needs no procedure, or detail. The parties need only agree on the approach and select a mediator or a mediation organization. There is very little structure to the process and the necessary agreements relating only to confidentiality and payment of the mediator are routinely signed at the commencement of the mediation. A party desiring to mediate but concerned about the reaction of their adversary is advised to contact the administrator at one of the mediation companies who is skilled in convincing the other party to agree to a mediation. Such organizations will also provide the mediator and the location for the mediation. Alternate methods of encouraging a reluctant adversary to mediate include suggesting to a motion judge or presiding judge that you are eager to mediate but your adversary is reluctant. Given such an opening, most judges will bring strong pressure to bear on the other party to mediate.
Selecting the Mediator
Through the Courts
There are a variety of places to find a mediator. Most other jurisdictions have seen the benefits of mediation and have instituted a mediation program of one type or another. Programs vary from a judicial settlement conference to a true mediation. The careful practitioner should investigate the program in a particular jurisdiction, the experience of the mediation judge in construction and lien cases, and their belief in and experience with the mediation process. One advantage of mediation through the court system is that there is no cost.
Private alternatives to mediation through the judicial process require payment of fees. There are several organizations throughout the country whose major focus is mediation and who also provide private arbitration. These organizations, U.S. Arbitration and Mediation, American Arbitration Association, and numerous active mediators not affiliated with any mediation organization. The mediators available from nonjudicial sources have varying degrees of experience as mediators and varying degrees of competence in construction disputes. The fees for their services also vary. Fees currently range from approximately $75 per hour to $10,000 per day.
Who Should Attend
It is crucial to the success of a mediation that each party be represented by an individual who has full and complete authority to resolve the case. It is unacceptable in a mediation to have final authority reside in an individual at the home office who is not present at the mediation. Argurably, the largest single reason for mediation failures is that the individual with authority to resolve the dispute is not present. Every effort must be made to have the responsibile person with full authority present for the entire mediation. Insuring the presence of the appropriate individual is the joint responsibility of the attorneys for the advocates, the mediation administrator, and the mediator. An attorney who has a concern about who will be present should communicate that concern immediately to all parties involved in structuring the mediation.
Types of Mediators
Breadth of Knowledge
A difference of opinion exists as to whether a skilled mediator can mediate any type of dispute from personal injury, domestic relations and sexual harassment cases to construction and securities fraud. There are eloquent advocates for the idea that a person skilled in the process can bring disputing parties together regardless of the topic of the dispute. Equally persuasive arguments are made that the mediator's knowledge of the subject area combined with experience and skill at the process bring a credibility not otherwise present which has a great impact on the parties, enhancing the likelihood of dispute resolution. The attorney representing a disputing client is well advised to discuss this issue with the mediator and with others who have used that particular mediator to become knowledgable about the mediator's experience and subject area knowledge.
There are also two schools of thought on how the mediation process should be utilized. One school of thought promotes continuing discussion and creation of understanding and empathy between parties. This approach is sometimes called "touchy-feely" or "hot tub" mediation by its detractors. The other school advocates reaching the monetary issues more quickly and utilizes a more agressive approach with the parties to reach resolution. This approach is sometimes called "Atilla the Mediator." While each approach has much to recommend, and each may be more or less appropriate to certain types of disputes, experienced construction industry executives after an appropriate exchange of their positions and frustrations, generally wish to address the monetary aspects of the dispute. These executives are generally sophisticated and assertive people who have risen to a position of authority in their organization because of those personality characteristics and generally respond better to an assertive mediator who is candid about the strengths and weaknesses and costs of their dispute. In selecting a mediator, the careful attorney will attempt to match the personalities and sophistication of the disputing parties with that of the mediator.
The Structure of a Mediation-How it Works
Many mediators commence the mediation by holding a joint meeting. In that meeting, each party will have the opportunity to state its position to all of the other parties. No witnesses are called, no cross-examination is allowed, and a premium is placed on brevity and concise statements. Either the attorney or the party or both may speak. The purpose of the initial session is for each party to hear facts and postitions not previously communicated to the decision-maker. The underlying concept is that most disputes occur when communications break down and the initial session is an aspect to the process by which communications begin.
Immediately after the initial session or, sometimes, in lieu of an opening session, the parties will be separated into their own rooms and the mediator will continually circulate from room to room reminiscent of Henry Kissinger in his Middle East shuttle diplomacy. In situations where the mediator believes that a joint meeting has the potential to aggravate animosities, or where there has been a full communication of the parties' positions, the mediation will commence with the caucuses. In a caucus, communication between the mediator and the parties is confidential and the mediator fully explores the position of each party in a separate caucus. The positions, concerns, and proposals of each party are communicated to the others with the help of the mediator. Generally, after several rounds of caucuses, a full and final resolution is reached. During the process, the mediator will move past nonessential detail and address and resolve the major obstacles to resolution. After an appropriate exchange of information, the mediator will focus on the practical economic costs of the dispute and help the parties reach an appropriate monetary resolution. A mediation typically is completed within one day and rarely takes longer than two days.
When to Mediate
When to mediate is a very delicate question. Generally, mediation should be conducted as early as possible in a dispute. If the prerequisites to mediation can be met, the mediation should occur before litigation or arbitration is commenced. The only requirement to mediation is that there be a general understanding of the positions of each of the parties. Mediation will generally be unsuccessful if one of the parties has not communicated the amount or description of their claim. However, mediation is appropriate immediately after the initial exchange of the general positions of the parties. Mediation should not be delayed because one party is concerned that they don't know a piece of information held by one of the disputing parties. In such a situation, the letter to the mediator should request the mediator to determine that fact or facts in the initial caucus. If an independent investigation or expert analysis is required, such as engineering anaylsis, those should generally be completed before commencement of the mediation. With those caveats, the sooner the mediation occurs, the less money has been spent on the lawyers, the less anger and hostility has been generated, and the more money there is available to invest in the resolution as opposed to the dispute itself.
Negotiation Prior to Mediation
A difference of opinion exists whether the parties should attempt to negotiate and commerce mediation after negotiation between attorneys breaks down. Many lawyers believe that they are fully capable of settling cases; after all, they have been doing just that for many years. Another school of thought argues that if the attorneys have exausted their exchange of settlement amounts, and committed to each other that no greater or lesser amounts will be paid or accepted, they arrive at the mediation in a psychologically inflexible position which makes the job of ultimate resolution much more difficult. This school of thought believes that attorneys should exchange as much information and as many documents as they feel comfortable with but arrive at the mediation having exchanged few, if any, settlement amounts so that the greatest degree of flexibility is possible on the part of the lawyers and their clients.
The Role of the Attorney During Mediation
The purpose of mediation is to allow disputing parties to resolve their own disputes. That statement implies a limited role for the lawyer. The major contribution which the lawyer can make to the process is determining the appropiate time to reach the mediation, selecting the best mediator possible, and writing a persuasive letter to the mediator outlining a path to successful resolution. Almost all mediators, and advocate lawyers, should encourage maximum client communication with the mediator. Venting by the client is extremely valuable and the lawyer may be surprised at the flexibility and willingness of the client to reach settlement. The mediation process, and particularly the construction industry executive's involvement in that process, encourages and facilitates parties to discard posturing and candidly discuss their real objectives. The lawyer can be extremely helpful in reinforcing those statements of the mediator with which the lawyer agrees and which move the parties toward resolution. Many lawyers are slow to recognize that clients will place greater faith in an effective mediator than in their advice. If the client is pleased and satisfied with the result, the lawyer has fulfilled his or her professional responsibility. Lawyers need to remember it is the client's case, even if the lawyer thinks the value of that case was greater or less than the client agreed to in the mediation.
How to Win the Mediation
The comments on the role of the lawyer during the mediation caucus should not be construed as conflicting with a strategy to "win" the mediation. Winning the mediation commences with determining the timing of the mediation. The lawyer should strive to have the mediation occur when his or her relative knowledge of all the facts and circumstances of the dispute are superior to those of the adversary. Winning strategy continues with selection of the right mediator and culminates with the persuasiveness of the letter to the mediator. If the advocate attorney's letter appropriately sets out a road map and agenda for the mediation, it will often be followed by the mediator. Any time a negotiation takes place in the context of your view of the issues and the dispute, you are bound to achieve a superior result. It is always an advantage to commence the negotiation with your adversary on the defensive without knowing it. The ultimate battle is for control of the mediator's analysis of the case. This will not occur by more frequent early contact nor by the quantity of the material and legal authorities presented to the mediator. Instead, it will be achieved by a concise and cogent recitation of the objectives of all the parties, obstacles to reaching those objectives, and suggestions to the mediator on how to proceed to overcome those obstacles.
Mediation Do's and Don'ts
Don't mediate without the decision-maker present.
Don't set a "bottom line" before the mediation commences.
Do let the client have maximum dialogue directly with the mediator.
Do prepare the client for what will occur during mediation.
The process is simple when working with the Contractors Resource Group, we seek to understand both parties positions & offer suggestions & ideas to resolve the matter quickly & so both parties feel good about the outcome.
Call us today to discuss your issue (916) 247-3506. We will provide you with a FREE 15 minute phone consultation.
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