MEDIATNG CONSTRUCTION MEDIATNG CONSTRUCTION DISPUTES: DISPUTES: Perspectives from the Perspectives from the Mediator Mediator W. Jerry Hoover W. Jerry Hoover Attorney * Mediator * Arbitrator Attorney * Mediator * Arbitrator October 26, 2007 October 26, 2007 2007 HBA Advising Construction 2007 HBA Advising Construction Clients Institute Clients Institute
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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? - PowerPoint PPT Presentation
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MEDIATNG CONSTRUCTION MEDIATNG CONSTRUCTION DISPUTES:DISPUTES:
Perspectives from the Perspectives from the MediatorMediatorW. Jerry HooverW. Jerry Hoover
“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.”
Ten (10) Mediation Do’s Ten (10) Mediation Do’s and Don’tsand Don’ts
Do’sDo’s Bring a decision makerBring a decision maker Bring a damage modelBring a damage model Keep an open mindKeep an open mind Give your best efforts to Give your best efforts to
evaluate the case for evaluate the case for settlement purposessettlement purposes
Consider Med-Arbs in Consider Med-Arbs in smaller casessmaller cases
Don’tsDon’ts Negotiate prior to the Negotiate prior to the
mediationmediation Schedule one-half day Schedule one-half day
Anything said at mediation that is later Anything said at mediation that is later discoverable, is not confidential.discoverable, is not confidential.
Clarification:Clarification: Anything discussed at Anything discussed at mediation relative to “settlement” matters mediation relative to “settlement” matters (dollars, demands, offers, bids, brackets, (dollars, demands, offers, bids, brackets, settlement terms and conditions) is settlement terms and conditions) is confidential and may not later be discussed confidential and may not later be discussed in front of the judge, jury or arbitrator.in front of the judge, jury or arbitrator.
CONFIDENTIALITYCONFIDENTIALITY12. CONFIDENTIALITY. 12. CONFIDENTIALITY. Confidential information Confidential information
disclosed to a Mediator by the parties or by disclosed to a Mediator by the parties or by witnesses in course of the mediation shall not be witnesses in course of the mediation shall not be divulged by the Mediator. All records, reports or divulged by the Mediator. All records, reports or other documents received by a mediator while other documents received by a mediator while
serving in that capacity shall be confidential. The serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in records or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any any adversary proceeding or judicial forum. Any party that violates this agreement shall pay all party that violates this agreement shall pay all fees and expenses of the Mediator and other fees and expenses of the Mediator and other parties, including reasonable attorneys’ fees, parties, including reasonable attorneys’ fees,
incurred in opposing the efforts to compel incurred in opposing the efforts to compel testimony or records from the Mediator.testimony or records from the Mediator.
WORD TO THE WISEWORD TO THE WISEBe Be certaincertain that if you discuss any that if you discuss any confidential information with the confidential information with the
mediator in private caucus, that he/she mediator in private caucus, that he/she knows it before he/she leaves your knows it before he/she leaves your
room. Do not assume the mediator can room. Do not assume the mediator can distinguish between confidential and distinguish between confidential and