The Workings of a Mediation

Recently, we participated in the mediation of a case involving five parties, the design of a new sewer line and the damage to an existing storm drain line. In short, a municipality engaged an engineering firm to design a sewer line extension that was supposed to run parallel to an existing storm drain line. The municipality also hired a general contractor to install the new line. The general contractor, in turn, hired the surveyor to layout the engineer’s design in the field. The general contractor also hired a blasting contractor to detonate explosives according to the surveyor’s field layout in order to make the ground easier to excavate. The explosive charges were placed too close to the existing drain line and the line was subsequently damaged. Needless to say, each party was blaming another. When it came time to mediate the case, each party had drafted its position for the mediator. The mediation was begun with each party in a separate room. The mediator spoke with each party for literally a few minutes to make sure he had an idea of what each party’s position was. Afterward, the negotiations began. In a mediation, it’s not about right and wrong or getting justice, it’s about settling the case. The mediator’s job is get everyone involved to agree on a settlement regardless of position. In the end, all of the defendants contributed some monetary amount to the repair of the drain line. In return, the defendants were able to leave without fear of further legal entanglement in this situation. The case was closed. It should be noted that monetary amounts are often associated with a degree of guilt (otherwise why pay anything?). Unless there is a very strong feeling of innocence, contributing to a settlement is a compromise between settling the case for an acceptable amount and going to court where damages can be imposed at much higher amounts in addition to court costs and attorneys fees.

Recent Happenings

1. Attended the National Truck and Heavy Equipment Claims Council conference. The conference was held from October 1^st to October 4^th in Savannah Georgia. R.J. Hill Consulting participated in the trade show.

2. Visited with the Chattanooga and Tri Cities Claims Associations in Tennessee; was asked to be the guest speaker for the Tri Cities meeting.

3. Participated in mediation involving municipality, engineering firm, surveyor, general contractor, and the blasting contractor. Case was settled with all defendants contributing to the repair of a damaged storm drain line.

4. Conducted examinations of two diesel trucks, one involving an alleged faulty fuel filter replacement and a fire in the other truck.

5. Conducted exam of small space heater involved in residential structure fire to determine if heater was defective.

Dangerous Construction Site

We’ve been working on something recently that has become an unbelieveably lucky set of occurrances for a general contactor. Seems that a rock crusher was damaged when a stick of undetonated explosive was unknowingly loaded into the machine and detonated. Miraculously, no one was injured or killed when the explosion occurred. Only the day before, an undetonated stick of explosive was found on the construction site. This finding should have been a huge red flag for all of the contractors working on the site including the general. Such an unsafe working environment should have been reported to the state authorities that control blasting activities. But it wasn’t. It became obvious that the blasting contractor and the general contractor didn’t report anything because of the potential consequences: shut down of the construction site and possible fines. After these two occurrances, there were others that went undocumented. At one point, one of the subcontractors called the authorities and was told not to do it again, that they (general contractor) would be the ones to do the reporting. Needless to say, the authorities that govern blasting and work safety say that nothing was ever reported to them. How many times has this happend on other job sites? Have contractors been getting away with running unsafe construction sites in the name of protecting their profits? Is politics a part of this danagerous game? Please comment.