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CDR Bulletin - Current Issue

Fall protection is mandated for residential construction as well as commercial construction.  If you think you are exempt, think again and check out this bulletin on the topic.

Fall Protection - Residential Construction

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Mediation and Arbitration

 

Mediation is a form of alternative dispute resolution (ADR) that involves the services of an independent neutral - the mediator - to resolve a dispute by facilitating communications between the disputing parties.  The mediation process is entirely voluntary and no party is forced to agree to a settlement.  It is a private and informal dispute resolution process where the mediator assists disputing parties in reaching an agreement that resolves their dispute.  Mediation is based upon the belief that the parties are best suited to determine how their dispute should be resolved.  If a settlement is reached, the terms of the settlement are mutually decided by the parties, not the mediator. 

The mediator is a neutral third person trained to assist disputing parties in reaching a mutually acceptable agreement for resolving their dispute. The burden of this resolution remains on the parties and on their arriving at a mutual understanding and agreement. The mediator coordinates the negotiation process but does not have any authority to make a binding decision.

After mutually agreeing to hire the mediator, a hearing date is established.  The parties may, but are not required to, provide documentation and/or evidence to support their position.  The hearing includes private, informal, joint and separate conferences with the parties in order to understand the facts and issues.  Separate meetings with each party are strictly confidential so that positions are not jeopardized.    If the process is unproductive the mediation may be stopped or continued at the parties' discretion.

The mediator will work to ascertain the real interests of each party, clarifying positions and the other side's views of a particular situation.  The mediator can help each party determine what is truly important and what is not.  With this understanding, the parties will be able to find alternatives and often creative solutions that they have not previously explored.  Once settlement and compromise is clear, the mediator will assist in drafting the settlement terms that resolve the current problems and meet the needs of the parties.  These terms can then be taken by the parties to an attorney for legal preparation in contract form.

 

Arbitration is another form of alternative dispute resolution and its purpose is to resolve a dispute privately using a neutral third party who will be the decision-maker for the disputing parties.  It provides a forum in which the parties to a dispute present their cases to an arbitrator or panel of arbitrators for a decision.  It is similar to a courtroom trial in that it is conducted in an orderly manner and in compliance with appropriate laws, rules and procedures.  However, an arbitration hearing is more relaxed and informal than a courtroom trial and an arbitrator has wide discretion in the application of rules and procedures.  The arbitrator functions similarly as a judge in that he or she determines if any claim is valid, and if so, what amount and/or performance remedy is to be awarded and how these are to be carried out.

Prior to the hearing additional preparation is required of the parties in gathering and presenting documentation to the arbitrator.  The purpose of the hearing is to allow an arbitrator to gather and review the facts in order to render a fair decision.  Generally, the decision is based more in equity than the strict letter of the law.  Therefore, it is important that each party be prepared to convince the arbitrator that their position is right.

Each party has a right to call witnesses and present evidence in support of their case.  Each side will be allowed to question the other party, their witnesses, and evidence.  Once all the evidence has been presented, the arbitrator will retire to review the evidence and prepare the decision.  In binding arbitration, any award rendered in the decision may be enforced in a court of law.