Overview of Services
Every dispute is different; they can concern every conceivable subject of human interaction (ranging from exremely personal matters like child custody/parenting time disagreements, to concerns affecting organizations such as business dissolutions, to matters affecting the broader public like complex, multi-stakeholder land use decisions). Diferent disputes benefit from different methods of dispute resolution, so in each case we'll work with you to design a dispute resolution method that fits your particular situation. Options and areas of expertise include:
MEDIATION - ARBITRATION - SPECIAL EDUCATION - CONSTRUCTION DISPUTES - EMPLOYMENT AND WORKPLACE CONFLICTS - TRAINING AND COACHING - PROCEDURAL DISPUTE MEDIATION - PRIVATE/ADVISORY JURIES - PUBLIC PROCESS/PUBLIC INVOLVEMENT - HYBRID PROCESSES
MEDIATION: The best possible results come when the parties to a dispute themselves craft an agreement they feel good about and can live with, especially when they will have an ongoing relationship after the immediate dispute has been resolved. Mediation works in nearly all cases, even when the parties are convinced that no agreement is possible. There are several different kinds of mediation, including facilitative, evaluative, interest-based, and narrative. We have found facilitative mediation, which emphasizes the importance of parties communicating directly with each other in a safe and supportive environment instead of playing "shuttle diplomacy", to be highly effective in all types of cases, but rather than rigidly following any model, we draw on the best parts of the different kinds of mediation to fit the needs of each case.
ARBITRATION: When a dispute can't be resolved through mediation alone, arbitration - which involves a private judge (or panel of judges) listening to both sides and issuing a binding decision - can be a good, cost-effective alternative to court trials. In arbitration, the parties retain substantial control over the timing and procedure. Arbitrations generally cost less, move faster, are more private, and intrude less on the parties' lives than court trials. There are only limited grounds for appealing an arbitration award, so arbitrations tend to have more finality. There are numerous ways of conducting arbitrations, and we'll work with the parties to decide whether there should be one arbitrator or a panel of three, how rigorously the rules of evidence should be applied, how much time should be allocated for each stage of the trial, etc.
SPECIAL EDUCATION: Parents and local educational agencies sometimes aren't able to agree on the best way of teaching children with special needs. Disagreements about placement, FAPE, and other aspects of a child's Individualized Education Plan ("IEP") aren't uncommon -- but with a little work, they almost always can be resolved in ways that satisfy the law and meet the student's, parents', and District's needs. If your IEP team isn't working as smoothly as you'd like, it can help to have a neutral expert help facilitate your IEP meetings, making sure all voices are heard. Similarly, if parents and schools disagree about the need for, or scope of, a 504 plan, we can help them find a constructive solution. If a specific dispute arises after an IEP is in place, the state Department of Education often can assign a mediator -- and Scott is on that roster as well. (Scott also serves as the mediator representative to the Oregon Department of Education's Dispute Resolution Committee.)
CONSTRUCTION DISPUTES: Construction defects, liens, change orders / extras, backcharges, jobsite injury claims, insurance coverage disputes, and indemnity issues can give rise to lengthy, and expensive, legal wrangling lasting for years after a construction project is complete. For property owners and Homeowners' Associations ("HOAs") unhappily facing possible construction defects, as well as for developers, general contractors, and subs and material suppliers dealing with defect, slow-pay, backcharge, lien, and other claims, the issues can get extremely complex. Resolving them requires a rock-solid understanding not only of "construction law" but also practical engineering and construction methods, repair methodologies, insurance coverage, contractual indemnity, mandatory arbitration law, lien law (a specialty unto itself!), and HOA politics.
We're experts in the broad universe of construction law. Not only do we regularly mediate or arbitrate construction disputes, but we have extensive experience in construction defect and payment dispute litigation (for both sides), and have even worked personally as construction laborers (Bellows, before law school) and designers (Maurey, who holds a degree in landscape architecture). Bellows has conducted or participated in dozens of multiparty construction mediations (some involving 50 parties or more and lasting for months).
What's more, we literally helped "write the book" on construction defect and homeowner association law: Bellows was the primary author of the Oregon laws governing HOA rights and responsibilities concerning defects in building common areas, and won the main Court of Appeals case delineating the scope of a community association's right to sue in that field. We thoroughly understand both the legal and the practical issues involved.
Custom-Designed, Global Construction Dispute Resolution: Not only are we experienced construction payment, lien, and defect mediators, but we're pioneers in finding more efficient ways to resolve construction disputes.
After disputes arise, it's normal, and sometimes best, for each party to hire a lawyer and a panel of experts to do battle with each other; later, a mediator, arbitrator or judge hears all sides and tries to sort out the competing claims. But in complex cases, including multi-unit or commercial construction defect cases and multiparty lien disputes, we think there's a better way: having ONE team of mediators and neutral experts investigate the problem on behalf of ALL the parties, then help them reach a reasonable resolution based on their mutual interests. Dispute Solutions can spearhead an investigative team (often including an architect, civil engineer, project manager, independent insurance adjuster, and other experts) that will conduct on-site investigations, evaluate the physical condition of the building, notify and educate the relevant insurance carriers and bonding companies, and negotiate or adjudicate a resolution. This can be done "on the record" (greatly streamlining the court process in the unlikely event that a solution can't be negotiated and proceeds to court), or "off the record" under the umbrella of mediation confidentiality (preserving all parties' rights to argue their position notwithstanding compromises offered during the team process). Either way, this process can save tens or hundreds of thousands of dollars in legal and expert fees, and yields a better (and faster!) result than the traditional, purely adversarial legal process. Please contact us if you'd like more information on designing a dispute resolution process for your complex construction dispute.
Before disputes arise, early in the process, we're advocates of a process variously called "Project Mediator," "Third Party Neutral (TPN)," "Dispute Resolution Panels" or "Dispute Resolution Boards." This concept, which originally was used in Canadian government contracts and U.S. geotechnical contracts but is beginning to catch on more broadly, involves naming Alternative Dispute Resolution providers early -- ideally in the contract documents themselves. Under this system, disputes are resolved as soon as they arise -- usually while construction is still underway -- instead of being saved until the end. As soon as claims arise, they are submitted to the Project Mediator or TPN, who meets with the parties on-site to inspect the relevant construction components, talk to key personnel, and work out a reasonable agreement, right there, boots in the dirt, hardhats on. In the rare cases when on-site, immediate mediation is unsuccessful, the pre-chosen members of the Dispute Resolution Board step in and make a binding decision -- again, with immediate access to the construction site, witnesses, etc. Either way, most problems are resolved during construction and before "cover" -- when memories are fresh, construction components can still be inspected, and all parties still have an interest in preserving their good working relationships and are more willing to work things out. The savings in time, money, and business relationships can be enormous.
We will work with you to design a construction project dispute resolution system, including crafting appropriate contract language, setting up correct procedures, and selecting a panel of neutrals acceptable to all parties. Dispute Solutions LLC does not charge any fee to be named Project Mediator for a new construction project; all we ask is that you notify us that we have been designated before work begins, so we can be prepared to respond quickly if a dispute does arise.
EMPLOYMENT AND WORKPLACE CONFLICTS: It's a simple, mathematical fact of life that most people spend more waking hours in the workplace than they do at home, and more time with their coworkers than with their families. What's more, most people care deeply about the work they do and the mission of the organizations they work for, and rely on their work for much of their sense of self-worth -- as well as for their families' financial well-being. As a result, disputes in the workplace usually aren't just "business" -- they involve people's deepest fears, aspirations, and values.
As former employment law litigators (representing both management and employees, for companies as large as Rite Aid and Les Schwab Tires and as small as two-person shops), we're experts in employment law, including federal antidiscrimination and disability law, the nuances of state "at will" employment rules, wage and hour regulations, and labor law. As mediators, we're also sensitive to the needs of managers to meet productivity and organizational effectiveness goals, and of employees to find both satisfaction and security in the workplace. When we work to resolve a workplace dispute -- whether for a large federal agency or for a small business -- we find ways to put both legal and personal issues on the table, helping parties comply with the law AND improve their working relationships.
TRAINING AND COACHING: Often, mediation simply involves helping people learn new ways of perceiving each other and responding to friction. Cooperation is a basic human trait -- after all, unlike some other "animals," humans naturally form families, tribes, and communities -- so often converting conflict into collaboration is as simple as teaching the people involved, who are plenty smart but are too close to the problem to perceive it objectively, some new insights or tools. A little insight, a new skill, and it's natural for humans to act like collaborative partners again. The same skills we bring to the mediation table can be taught to individuals and groups, making them more cohesive, and more productive, and better managers. We've trained everyone from community mediators, to construction contractors' groups, to other mediators. We can custom-tailor a training that meets your individual or group needs, as well.
PROCEDURAL DISPUTE MEDIATION: In litigation, much time and money are wasted on procedural disputes short of trial. For example, attorneys may reach an impasse over which documents need to be produced to the other side, what witnesses need to be deposed, or which issues are or aren't in dispute. Even if a case needs to be tried, we can help lawyers and their clients resolve procedural disagreements quickly, and narrow the issues in dispute by agreeing on the law to be applied or stipulating to some or all of the facts (see, e.g., ORCP 66) so that the ultimate trial is faster, more efficient, and less costly to the parties.
PRIVATE AND ADVISORY JURIES: In some cases, the parties want the speed, flexibility, and finality of arbitration, but are reluctant to give up their Constitutional right to jury trial. In other cases, settlement talks may be at an impasse because the sides disagree about how a jury is likely to view certain facts. In those situations, many people feel their only option is to proceed to a formal jury trial in the Circuit or District court.
There is an alternative, however. We can help the parties select a private jury of laypeople, comparable to the jury pool they would find in court, and try their case to that private jury. Depending on what the parties choose, the private jury can render either a binding verdict (resolving the case) or a nonbinding advisory verdict (a sort of "reality check" after which both sides are much more likely to reach a voluntary agreement). Just like arbitrations, private jury trials tend to be more private, swifter, more efficient, less appealable, and less costly than court trials.
PUBLIC PROCESS/PUBLIC INVOLVEMENT/COLLABORATIVE PROCESS FACILITATION: Working with the Oregon Consensus Program and others, we can help develop collaborative processes that enable government agencies to work with other interest groups to solicit public input in crafting new policies and to arrive at public policy goals and procedures that all stakeholders can agree on. More...
HYBRID PROCESSES: Some cases lend themselves to creative combinations of the above methods - for example, if mediation is unsuccessful, the parties may ask the mediator to simply decide the case based on the information he's learned; a mediation may be partially successful, resolving some issues and leaving others to be decided by an arbitrator; or a small private jury may help an arbitrator decide difficult questions of fact. At Dispute Solutions, we'll work with you to craft a flexible, efficient method, drawing on a number of tools, to resolve your unique case.