Blog Archives - Gary P Shaffer

Who Needs to be Present at a Construction Mediation?

{6 minutes to read} This is the first of several blog posts on who needs to be present at a mediation for it to proceed smoothly. A resolution may not be reached even with all the proper players present. But without them, there is no chance. This blog will address construction cases.

Construction cases come in all sizes. They can arise from putting in a new bathroom to constructing a hundred-story skyscraper. And everything in between. Even small jobs may involve an architect, a GC, and a sub or two. For example, that new bathroom may require electrical work that is done by an electrician who is not an employee of the GC. If there is an electrical issue post-construction, does the electrician need to be present at the mediation? Probably, but has the electrician been sued? Of course, a mediation can be held without starting a lawsuit, which can be extremely useful assuming everyone agrees to participate. Maybe the homeowner and GC can work something out between themselves. In a small job, that’s often possible.

Show Me the Money!

{4 minutes to read} After Covid shut down most courts in March 2020, it became clear that mediation could be an essential means to move cases along. The number of court-based mediation programs started to expand, with enormously positive results. This in turn has expanded the use of mediation as a routine part of the litigation process. It has also raised a long-simmering issue about paying mediators for their work.

The history of mediation goes back many years. Its first major use in New York was largely through what are called Community Dispute Resolution Centers (CDRC’s), which, as the name implies, handled community disputes. These were often the types of disputes that arose between neighbors. Excessive noise, some kind of trespass, an argument that was persistent and maybe about to get out of hand, or even did get out of hand, meaning the police had been called. Indeed, the police were often the conduit for cases going to a CDRC, since they realized the conflict was more civil rather than criminal.

Genesis and Dispute Resolution

{4 minutes to read} Conflicts go back a long way. There’s no shortage of them. Some get resolved and some don’t. And the species has chosen many different ways to resolve disputes. One method with a long history is murder. It’s a quick solution, though not necessarily a long-lasting one.

Cain killing Abel, marble relief on the facade of the Milan Cathedral, Duomo di Santa Maria Nascente, Milan, Lombardy, Italy

According to the Bible, Adam and Eve get off to a rocky start. Even before the trials of raising a family arrive, Adam and Eve have some issues. You may recall the serpent convinces Eve she need not fear eating the fruit from the Tree of Knowledge of Good and Evil. She eats the fruit, gives some to Adam, who also eats it, and things go downhill pretty fast. God notices what happened, asks for an explanation, and the testimony is a model of accepting responsibility and trying to work things out.

Does it Matter What Time a Mediation Starts?

Someone once asked me what the key was to resolving a case at mediation. My answer was: It starts to get dark out.

No one wants to leave the mediation at the end of the day with nothing to show for it, and as the skies deepen, people often start to modify positions that were much firmer earlier in the day. The logical extension of this is that the winter solstice is your friend and the summer solstice can be a setup for a very long day.

Of course not every case gets resolved in one sitting and the setting sun may have little effect on divorce matters, which often unfold over several months as the spouses figure out how to navigate a new landscape involving kids, houses, finances, and summer vacations. But a large percentage of mediated disputes are limited to issues that will be resolved by one party paying the other a sum of money. In those matters, I often find that people don’t want to end the day without a resolution.

Presumptive Mediation Update

~This post is dedicated to Chuck Newman, a good friend who was passionate about mediation and worked tirelessly to move it forward in many different areas. He will be sorely missed.~

{4 minutes to read} I have written before about Presumptive Mediation, which generally refers to courts where almost all civil cases presumptively go to mediation early in the litigation process.

Many state and federal courts have such programs and they are generally very successful. The New York State courts have been slow to embrace this though in May 2019 the State’s Chief Judge, Janet DiFiore, issued a press release stating the New York State courts would move to a presumptive mediation model.

Can Mediation Turn Back the Clock? – Construction

In my last blog, I addressed mediation turning the clock back and focused on divorce matters. What about other types of disputes?

Reverse clock with wooden frame isolated on white background

Several months ago, I mediated a case involving an upscale medical practice in a very upscale Manhattan coop building. Like most medical offices in such buildings, it was on the ground floor and had suffered from some flooding that the practice believed was the fault of some actions taken by the coop. The case was actually on appeal before the 2d Circuit so one side had already prevailed at the District Court. However, the mediation brought the two sides together for discussions that never would have happened had the parties simply moved ahead with the appeal. It turned out that both sides really wanted to figure out a way to live together since, in fact, they were going to regardless of who prevailed on appeal. Neither the building nor the medical office was going anywhere soon.

Can Mediation Turn Back the Clock?

I’ve written before about what success means in mediation. Often it means a complete resolution of a dispute and the parties can go on their way, having saved lots of time, aggravation, and a bundle in litigation expenses. Even when there is not a complete resolution, mediation often resolves at least part of a dispute or helps the parties significantly lessen the amount of discovery needed as the case moves forward. However, can mediation undo what’s been done? Can it restore the parties to some kind of pre-dispute state of harmony?

Discovery

{4 minutes to read} I have written before about when is the best time to mediate. No, you don’t have to go back and re-read that blog because the answer is simple: Now. Now is the best time to mediate.

Does that mean, now, now, or now with some lag time? Ok, now with a little lag time. A party can’t mediate by itself, so there are by necessity some preliminaries, like getting the other side(s) to participate in the mediation. However, that is becoming easier as more courts increasingly direct the parties to mediation without waiting for an agreement. If you want to see a good example, look at the ADR rules for the Federal District Court for the Western District of New York or the rules for North Carolina State Courts and federal courts: Eastern District of NC, Western District of NC, and Middle District of NC.

Can a Mediator Really Like Everyone?

Grimacing mime with hands akimbo and mask on head

It’s not uncommon that parties to a mediation don’t like each other, though you can never predict beforehand. I find that opposing counsel are typically at least cordial to each other and sometimes downright friendly. Divorcing couples sometimes get along just fine during a mediation. And I’ve been in situations where the clients, watching their attorneys bicker back and forth, take matters into their own hands and work out a deal between themselves.

Part of the mediator’s job is to be friends with everyone. If you want to successfully push and cajole, it’s best that people think you’re their friend. Usually, this isn’t too hard.

Does Familiarity Breed Contempt?

Image of Last Will and Testament ready to sign

{3 minutes to read} Estate battles generally lend themselves to great TV. No, what I really meant to say was that estate battles generally lend themselves to mediation. They take some unpacking since the issues that give rise to them are often years in the making. Maybe decades. There can be distrust, hurt feelings, greed, anger. There are in-laws whose membership in the family may be recent or of long duration. The parties often don’t want to be in the same room with each other, something that mediation – but not the courtroom – can accommodate.

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