FAQs

Who pays the costs of mediation or arbitration?

Typically the parties will split the cost of mediation.  Most arbitration clauses include provisions where the loser pays the costs and attorney fees of the winner.

How does mediation work?

Mediation is a process where the parties negotiate toward a resolution facilitated by the mediator.  The parties will often be in separate rooms to encourage candor with the mediator, whose job is to educate them and to move them toward a mutually acceptable result. The parties often do not have attorneys and the mediator is neutral thus can tell them both what the likely dispute outcome will be if they go to court. The process is typically inexpensive and abbreviated over either arbitration or litigation. A very high percentage of mediated cases are resolved and result in substantial savings of time and money for both parties.

How does arbitration work?

Arbitration is a more informal way of presenting the case and allowing an expert to make a decision without the time and expense of going to court.  Typically the decision is binding and can be taken to the court for enforcement if one party fails to honor the decision.  The evidence rules are usually agreed to be less stringent, reducing costs and time in presenting evidence.  Arbitration is commonly accomplished in about 1/3 the time used to present the same case in court and at an even smaller fraction of the cost and attorney fees to present the same case in court.

What are some typical mediation issues?

CONSTRUCTION

Examples in construction are usually poor work and or threats of liens on your building or home. Did you know a contractor may be guilty of felony theft for accepting payment then not paying the subcontractors who did the tile, painting, supplied the lumber, etc.?  Do you have trouble with a foundation or a roof and wonder whether it was done properly?  

There is even a specific requirement of notice of defects before you can pursue a claim against a contractor or an engineer.  Most of the contracts for construction are extremely one sided in favor of the contractor.  Have any contract reviewed before signing and save a great deal of time and money should something go wrong.  Remodeling contractors are notorious for problem construction and often have minimal or no licensing.  Check out your contractor, get references and view other jobs before hiring him.  Make sure all accounting for the project is openly reviewable and that all checks are made payable jointly to the contractor and the subcontractor who actually did the specific part of the work.

CIVIL LITIGATION

These issues typically involve personal market place transactions and behavior. Ron is experienced with various liability issues, including human resources, risk analysis, contract and insurance bad faith analysis, dangerous products liability, business and accounting practices, real estate transfer and ownership, premises or operations liability and fraud litigation, acting as lead counsel for numerous matters of complicated litigation and/or transactions across the United States, including as lead counsel in numerous case negotiations, settlements, arbitrations and trials. Cases include jury verdicts and settlements in the millions of dollars.

EXAMPLES:

• My basement floor is heaving and the doors don’t fit. What can I do?

The builder, engineer, architect or other professional may have been negligent in the design and/or construction of your home.  You likely have a valid claim but don’t wait too long because claims against such professionals are strictly regulated.

• When I left my last job, I had to sign a business confidentiality and non-compete agreement.  Now my old company is threatening me if I go to work in the same field.  Do I have any defense?

Non-competition and other agreements which restrict the right to work are narrowly construed in Colorado.  Have the situation analyzed by a competent attorney who has dealt with this issue many times.  Unless you were a high level employee with access to truly unique information, there is a good chance you cannot be restricted.

• Do you have a disability affecting you in your job?

The Americans with Disabilities Act (ADA) applies to most employers with more than 15 employees.  A simple summary of the issues follows, but this should not be considered in any way comprehensive or definitive of a particular point.  In short:

• Most hiring and firing activities are covered.

• A disability is present when there is ongoing substantial impairment of a major life activity.

• The individual must be otherwise qualified to perform the essential job duties.

• Unless a hardship, the employer must make reasonable accommodation for such person.

Suppose an employee has some disability from an injury out of the workplace and is interested in returning to work with some accommodation.  If the ADA may apply, the next consideration is whether this person is protected.  If the disability is temporary or limits performance of manual tasks, but not in substantial ways, the ADA is likely not applicable.If the ADA is applicable, it is probably a reasonable accommodation to restructure the employee’s tasking, so long as it is not unduly costly or disruptive of the other’s morale or work.  The employer may fire the employee, but may not discriminate on the basis of his disability.