MEDIATOR AND ARBITRATOR
SELECTION AND APPOINTMENT
The success of a mediation or arbitration is usually due, in large part, to the abilities and experience of the mediator or arbitrator (Specialist). Selecting the best Specialist is critical to reaching a fair and equitable settlement or award. The costs of utilizing the best Specialist is usually insignificant in comparison to the dollars that will be gained or lost if the Specialist is not really compatible with the dispute.
In most mediations or arbitrations, the parties rely on their attorney to recommend a Specialist based on the attorney’s knowledge of the available mediators and arbitrators in their area. If the parties do not have an attorney, they usually go to Google, Yahoo, Mediate.com, the yellow pages or other recognized search engines to locate a mediator or arbitrator. If the parties have specified a national provider of ADR services in their construction contract or mutually agree to use that national provider, the provider will usually provide a list of from one to ten specialists to select from. CDRS is unusual in that it provides the photo and complete biography of all of the members of the CDRS National Panel of Construction ADR Specialists on our website for the parties to review.
In mediation, where the mediator will not be required to issue a decision that will be binding on the parties, the construction technical knowledge of the mediator is not as important as having a trained and experienced mediator who can successfully guide the parties to a fair and equitable settlement. In Binding Mediation and Binding Arbitration, where the Specialist is empowered with the task of issuing a decision or award that will be binding on the parties, it is very important that the mediator or arbitrator have knowledge and experience concerning the major issues involved in the dispute. It is our belief at CDRS, that if the Specialist does not have the construction knowledge required to properly handle the case, similar to going before a judge who “doesn’t know the difference between rebar and a Hershey bar”, the best attorney or the party who presents the best case will win, regardless of who is actually right or wrong.
As a result, CDRS recommends that the parties review the experience and background of ALL OF THE CDRS SPECIALISTS to select the best Specialist to handle your case. You may spend a little more money flying in the Specialist and covering his/her expenses, however, you will probably save yourself a great deal of money overall when the Specialist makes a fair and equitable decision or award based on the Specialist’s experience and expertise along with the information that is presented by the parties rather than a decision or award that is issued based primarily on the presentation made at the hearing or mediation. As CDRS maintains a data bank which indicates the area of expertise of our ADR Specialists, we also recommend that you contact CDRS prior to making your selection of your Specialist, to inquire as to whom we might recommend based on the importance of the major issues involved in the dispute.
If the dispute involves issues including the quality of construction, not following plans and specifications and similar issues, it is the policy of CDRS to have the Specialist make a jobsite visit prior to the mediation or arbitration, if the parties agree to the jobsite visit. The “CDRS Mediation and Arbitration Rules and Procedures” allow the binding mediator or arbitrator to make a jobsite visit after the mediation or arbitration if he/she feel that they need to see the job to render a fair and equitable decision or award. Having a construction-experienced Specialist would certainly add to the ability of the Specialist to render the correct decision or award.
CDRS has several construction attorneys on our National Panel. Many times the dispute is not really about actual construction but is centered on issues such as breach of contract, legal issues, interpretation of construction contracts and similar issues. Our attorney Specialists would certainly be preferred over construction experienced Specialists.
If the parties have specified CDRS as the provider of ADR services and they can not mutually agree on a Specialist to handle their case, according to the “CDRS Mediation and Arbitration Rules and Procedures”, the CDRS Senior Case Administrator shall select and appoint a Specialist to handle the case.
It is important to understand that each mediator/arbitrator who is affiliated with CDRS is an independent contractor and is not an employee of CDRS. Mr. Merrill, CDRS President and CEO, personally interviews each mediator/arbitrator candidate and verifies, to the best of his ability, each aspect of the background, experience and training of the prospective candidates. When possible, the CDRS Credentials Department checks on the background and experience of the perspective mediator/arbitrator with the Better Business Bureau, local builder associations and other related trade associations, local and state Bar Associations if applicable, local municipal building departments, local licensing boards and other related associations or entities. If Mr. Merrill and the Credentials Department considers that person to be of high moral character, is respected in their construction community, and possesses the expertise and knowledge required to be an effective, neutral, impartial and independent mediator/arbitrator, who will be both fair and equitable to all parties involved in a dispute, then an Independent Contractor Agreement will be executed and the Independent Contractor will be added to the CDRS National Panel of Construction ADR SPECIALISTS.
CDRS reviews each case that is submitted to CDRS. After we has reviewed and summarized the items in the dispute, unless all of the parties have requested a specific mediator/arbitrator, we select and recommend the Specialist who, in our opinion, is the best qualified to handle that case based primarily on the mediator’s/arbitrator’s expertise and knowledge in the areas of the dispute and their experience as a Specialist. This person’s location, availability and other such issues are also involved in his/her selection. As mentioned earlier, it is our belief that even if the mediator/arbitrator has to travel a greater distance, it is better to have the most experienced and qualified person available handling the case.
It is a common practice for firms or businesses that are involved in the construction industry, that use mediation or arbitration as their primary dispute resolution mechanism, to specify a “Provider of Services” such as CDRS in their construction contract. There is always a question in the other parties’ minds as to how neutral, impartial, and independent a provider of services can be and how fair and equitable they can be when they consistently provide dispute resolution services to one of the parties. Three of the sections of the “Independent Contractor’s Agreement”, which are quoted herein, directly relate to this question
1.) CDRS shall not in any way try to influence the decisions or rulings of the Independent Contractor and will always encourage the Independent Contractor to remain neutral and to render his/her opinion in as fair and equitable manner as possible.
2.) The services rendered by the independent contractor under this Agreement shall not be subject to the review and/or the control of CDRS but shall be performed independently by the Independent Contractor as an Independent Contractor to CDRS.
3.) The Independent Contractor shall perform dispute resolution services for CDRS as an independent contractor using his/her best professional training, skill and judgment in matters of construction and construction law.
The reputation of CDRS depends on the total neutrality, impartiality and independence of its mediators and arbitrators and CDRS’s future is dependent on the fairness and equitable nature of the decisions of its mediators and arbitrators. As a result, CDRS will continue in its endeavor to recruit and select the finest, best educated, trained and responsible mediators and arbitrators to provide the utmost in dispute resolution services available in the construction industry.