Page 11 - July August 2021 CBA Report

3.MEDIATOR’S CONFIDEN- TIAL FACT-GATHERING
AND DIAGNOSIS
With the parties’ consent, the mediator then works independently and confiden- tially with the parties and their attorneys to gather important information, review possible roadblocks to settlement and develop an appropriate settlement process. The mediator may interview key players to understand the real dynamics involved and the underlying settlement needs of the parties, not just the issues raised in legal briefs. The mediator also determines whether there are other parties that need to be involved, such as insurers or subcon- tractors, and which individuals should attend the mediation session.
also help the parties anticipate and navi- gate possible roadblocks to settlement.
an arbitration or other ADR process for disputes that do not settle in mediation. With informed consent by the parties, some mediators will agree to change roles and serve as arbitrators to decide disputes that do not settle in mediation.
With some forward thinking and planning, and the timely retention of a mediator experienced in the early dispute resolution process, parties can resolve disputes better, cheaper, and faster and thereby help minimize risk, protect their bottom lines and preserve business relationships.
After a long career as a construction lawyer with
Frost Brown Todd LLC, Scott Gurney started
Gurney Dispute Resolution LLC to focus on resolving construction disputes efficiently and fairly, without litigation. Gurney has received mediator training from Pepperdine University, is on the American Arbitration Association’s National Rosters of construction mediators, construction arbitrators, and large complex case arbitrators, and is a frequent speaker and writer on alternative dispute resolution.
DOCUMENT AND
INFORMATION
The mediator then works with the parties and their attorneys to determine what additional documents and infor- mation needs to be exchanged to make an informed business decision on settle- ment. While the parties clearly need some information about the claims to make an informed settlement decision, signifi- cantly less information is needed to make an informed settlement decision than to present a case in trial or arbitration.
5.CUSTOMIZING THE SETTLEMENT PROCESS
AND MEDIATION
Based on information learned during the initial review, the mediator works with the parties and counsel to customize the settlement process and mediation session to have the best chance of success. For example, could the issues or gap between the parties be narrowed if the expert witnesses exchanged preliminary reports or met before the mediation session? What topics should be covered in the pre-me- diation briefs, and should the briefs be confidential or exchanged between the parties? Should there be joint sessions where the parties and/or their attorneys make presentations, so the parties feel they have had “their day in court”? Or should there be caucus sessions only with the parties separated from the beginning? Before the mediation, the mediator should
6.
MEDIATOR AFTER SUSPEN- SION OF NEGOTIATIONS
Many disputes that do not settle in the mediation session itself settle some- time thereafter because of the progress made in the mediation. This is especially true where the parties continue to use the mediator to help continue or jump-start negotiations. In many cases, it makes sense for the parties to continue to work with the mediator, either by telephone or in person, to help close any gap remaining after the mediation session.
7.CUSTOMIZING AN ARBITRATION PROCESS
FOR DISPUTES THAT DO NOT SETTLE
Finally, the mediator can also help the parties and their attorneys customize
CONTINUED
INVOLVEMENT OF THE
4. EXCHANGE
Alternative Dispute Resolution
CBADR — Always in Session Arbitration
Filing Fees are $500 regardless the amount of the dispute
New Expedited Arbitration Options
New Comprehensive Traditional Arbitration Rules
Mediation
Qualified roster of arbitrators
Employment Specific Procedures and Discovery Protocols
No up front fee to Qualified roster of the parties mediators
For more information, visit cincybar.org/adr
www.CincyBar.org
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