For this week’s Guest Post Friday here at Musings, we welcome back Rob Mathewson (@geedrarob) of Geedra. Rob has spent twenty years in sales and marketing management roles with experience in industrial, consumer and construction markets. Rob believes the construction industry is ripe for innovation, based on its massive size, yet low productivity. Even with such inefficiencies, a building still rises from the ground. Rob’s goal with Geedra is to leverage technology to increase transparency and communication so that projects can be completed with less risk, effort and cost. Prior to founding Geedra, Rob was the Chief Marketing Officer for Construction Documentation Services, where he was responsible for sales, marketing and business development. He spent 15 years in the chemical distribution business, including eleven years as the Northwest Branch Manager of a $50 million distributor. Rob was the founder and CEO for On The Spot Games, a board game startup.

I LOVE construction operations directors (“Super O’s”). They live for creating systems that enable their organizations to deliver hundreds of millions of dollars in construction projects each year. If you are ever lucky enough to get one of them to look away from the daily hum of their operations and get him talking about the systems he’s built, you get the sense that there is nothing that can’t be broken down into a series of repeatable steps that deliver predictable results.  Well, almost nothing.

It’s my unenviable task to engage these gentlemen* in a discussion about their systems for collecting and organizing their construction photos. As Chris and I have discussed before, photos are a critical component of construction documentation. The Super O’s know this better than anyone. So, they craft meticulous file folder systems and procedures for the proper storage of project photos. A photo filed away using a Super O’s system should be as easy to find when it’s 12 months old as it is when it’s 12 minutes old. That is, assuming the individual who took the photo followed the system. Hmmm, did I say assume?

That assumption is the problem. Experience shows that, in the heat of the day-to-day construction battle, individuals don’t follow filing systems uniformly. Sometimes they’re distracted; sometimes they make what seem like obvious interpretations. But in the end many critical photos get misfiled and the best systems in the world can’t bring them back. Unlike a misfiled document, there is no such thing as a global keyword search for a missing photo. Once that photo is missing, finding it is akin to finding a needle in a haystack.

*My apologies if you are a lady in this position, because if so, I haven’t found one of you yet. But I keep looking!

Rob and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

This week, Musings welcomes Michelle Mangen to the Guest Post Friday fold.  Michelle’s vast talents and expert skills in accounting, bookkeeping and Excel, far exceed the average virtual assistant’s scope of knowledge; thereby further enhancing not only her back-end office, but those of her clients.   Extending administrative and other remote admin services to her global client base, Michelle creates personalized virtual assistant solutions for each and every client, ensuring 100% customer satisfaction, loyalty and professionalism.

Her core services are: Social Media Management: (Facebook Fan Pages, Social Bookmarking , Twitter, etc.),  Aweber, WordPress site management, Bookkeeping and Excel spreadsheets. Additionally she offers administrative services as well.  You can reach Michelle at www.TheVirtualAsst.com or follow her on Twitter at @mmangen.

Larger law firms have the resources at their disposal to place expensive TV ads or billboards along the highway to garner new clients and to establish their brand. Smaller law firms could gain a competitive edge on these larger firms by taking advantage of many of the tools and resources (many free) that would enable them to dominate local search results through the use of Social Media.

By utilizing your own website as your content hub many of the following ideas could be implemented at little or no cost:

• Blogging – this alone has innumerable benefits to your marketing campaign
• Creating whitepapers and allowing other attorneys to use the content in a cobrand situation
• Hosting a weekly or bi-weekly Q&A session around a specific topic and publishing to your website as a podcast
• Submitting their practices to the many local search engine profiles (Google Local, Bing, Yahoo!, Superpages, etc.)
• Participating within LinkedIn groups and the Questions & Answers area
• While your gut reaction may be to avoid Facebook it’s currently the fastest growing website with the greatest increase in the 55+ and older category
• Twitter
• Becoming a volunteer at AllExpert.com (January 2010 had over 5.3 million unique visitors to the site according to Compete.com)
• Submitting articles (or re-purposing blog posts) at sites like Ezine and GoArticles
• Online press releases to sites such as PitchEngine and PRWeb

So how does an overworked attorney maximize all of these areas? One of the easiest and most effective ways would be by partnering with a Virtual Assistant who is familiar with and practices Social Media for their own business.

Here are just some ideas to get your creative juices flowing:

• Have a virtual assistant do the necessary research for references you would like to include on your blog (landmark cases, etc.)
• Find free stock photos that can be included in your blog posts
• Proof and / or edit posts before they go live
• Schedule your blog posts and depending on your website platform install plugins that allow for your blog posts to be spread automatically to various platforms (such as Twitter, Facebook and LinkedIn)
• Submit previous instructional blog posts to article directories
• Set up and maintain all local search engine profiles
• Submit press releases announcing new hires, won cases, etc.
• Schedule podcast sessions and upload to website after the event
• Prepare and send out monthly newsletters

Aside from the ideas mentioned above there are many more ways a Virtual Assistant could assist an attorney or small law firm to gain new clients at a cost that is minimal in comparison to pricey yellow page advertisements.

At this point you may be asking how to find a good social media virtual assistant. I’d first suggest asking your network if any work with one. If that yields no results then you can turn to Twitter, LinkedIn or Facebook.

Once you find a virtual assistant who you feel may be suitable check out their website to see the if they have their own blog and monthly newsletter.

By just doing those few steps you will quickly narrow down the list of potential Virtual Assistants who may be able to help your firm grow its online presence.

One last thing I’d suggest to properly monitor your growth is to start with benchmark numbers on anything that can be obtained – your Google Analytics, Twitter following, LinkedIn Connections, etc. so you can document the growth you achieve through your newly established efforts.

If you would like more tips and tricks on leveraging Twitter for your business I invite you to download a free copy of an e-book I co-authored: Leveraging Your Power through Twitter. Enter code: BIZCARD at the checkout screen to receive it at no cost.

Now you’ve been given some food for thought. What other ways can you see utilizing a Virtual Assistant to grow your online presence?

As always, Michelle and I welcome your thoughts and comments below.  Also, please subscribe to keep up with this and other Guest Post Friday posts.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

While you wait, please check out the Guest Post Friday page and, if you are interested in joining the parade, check out the guidelines and then let me know what you’d like to contribute.

Thanks to everyone past, present and future who’s contributions to this series have made this construction law blog so much more interesting.

Image from stock.xchng.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Jason Mark Anderman.  Jason is President of WhichDraft, designed to help small businesses, freelancers, and entrepreneurs easily and affordably create the kinds of legal documents they use in their businesses every day via a simple Q&A interface that makes it easy to quickly create sophisticated legal documents, like Confidentiality, Consulting, Software Development and Commercial Lease Agreements.

Today I want to share with you how to use a knowledge management strategy to massively improve your negotiating expertise and ability when it comes to a common commercial lease provision: the option to expand. For the purposes of this post, let’s consider this provision from the perspective of a commercial tenant.

Key Negotiating Points. First you will want to determine your key negotiating points. Excluding rent increase and construction issues, I’d recommend that you first brainstorm what positions the lessor will likely take and what you would likely to take on these key negotiating points from your perspective as the tenant on the property.

Conditions: It’s a good idea to start off thinking about all of the conditions a lessor will usually want you, the tenant, to meet before exercising an option to expand the leased premises. Here are the conditions a lessor will normally push for:

Þ Not In Default. Typically, lessors do not want a tenant to be in default when they exercise an option to expand.

Þ Continuous Possession Of X% Space. Lessors often want only a reliable tenant to take over additional space, so being in continuous possession gives them more confidence, especially if that possession involves a substantial percentage of a building that the leased premises might exist within.

Þ Continuous Possession For X Time Period. Similarly, a lessor may also ask for the tenant to meet the condition of being in continuous possession of the leased premises for a certain amount of time.

Amount of Space: It would be a good idea to think about the minimum and maximum square footage you want to have the option to expand into, as well as the height for the expanded leased premises.

Þ Minimum Square Footage.

Þ Maximum Square Footage.

Þ Height.

Option Frequency: A savvy negotiator also considers the frequency that she can call on this option. A lucky tenant might see a lessor miss this issue so the lease ends up silent as to how often you can expand. Savvier lessors might push back hard on this point and limit the number of times the option to expand can be exercised, even restricting the number of times to once annually or only once during the entire term of the lease.

Þ Silent.

Þ Once Annually.

Þ Once During the Term.

Negotiating Strategy: Now that you determined your key negotiating points, you want to prepare your negotiating strategy within a chart that clearly states the different negotiating permutations for each point so you can quickly and easily assess your and the lessor’s positions. For each point, determine the ideal result you want, what one needs or can live with conceding on, and your walk points (or BATNAs) for you and the lessor. This will allow you to maximize your negotiating leverage.

“BATNA” means “Best Alternative to a Negotiated Agreement” which is, essentially, what you would do if you can’t reach an agreement with the lessor. Too often, tenants fail to determine their BATNAs, which allows a strong lessor negotiator to increase its bargaining power against you. If you are not willing to walk away from negotiating and make that honestly clear to the other side, then the lessor is emboldened to push hard for increasing concessions from you in the lease agreement.

You are likely, then, to end up caught between two bad options: (1) a one-sided lease agreement not in your favor, or (2) the fear of not concluding the lease with no alternative leased premises for your business. The solution is to do your homework and determine what other leasing alternatives exist before you start negotiations.

Here is an example of a negotiation strategy chart you might use to negotiate the option to expand provision in a commercial lease:

Example: Negotiation Strategy Chart

Hopefully, this approach will allow you to excel at negotiating, and is highly recommended for all kinds of contract discussions to make sure you reach agreement on a deal that best meets the needs of you (or your client) successfully.

As always, Jason and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday Musings, we welcome Nick Pacella.  Nick is an architect licensed in New York, New Jersey and Connecticut. His practice has spanned several economic swings and he has been able to reposition the eggs in his basket to make the most of each recovery. He is currently focusing on adapting existing commercial buildings to take advantage of materials and processes that promote improved energy efficiency for both the owner and the tenants. For a more colorful rendition of projects you can visit his company’s website, www.nmparch.com.

I remember as a kid when the attendant at gas stations would not only clean your windows but also check the oil level of your vehicle as it was filling up with $0.25 per gallon gas. (I did say that I have seen several economic swings) These services have mostly disappeared, and to no great effect to your car since most cars go much longer between oil changes. Other than a slightly dirtier windshield it hasn’t affected your ability to drive and maintain your car.

This is not so with professional services. Architects used to include many services that are now sourced to others. Project Management, Owner’s Representatives and Program Managers now populate the landscape. In many cases they came to be because architects either did not provide the service their client’s were looking for or they allowed themselves to be put into an adversarial relationship with their clients. They were likened to foxes watching the chicken coop, especially for project management and owners representative services. Client’s have had others buzzing in their ears “are architects really going to look out for my interests above theirs?’” Of course the clients never ask if the new wave will do any better at rallying behind their interests.

For the most part Owners Representatives and Project Managers are well trained and offer a dependable service, but the issue still remains; is the architect still a part of the main team in terms of the dissemination of information? The more information from the client is filtered as it is passed on, the more dissimilar it is to the original. Just think of any game of ‘telephone’ and how the first phrase that is whispered is mutated and transformed by the time it reaches the last pair of ears. This becomes even more disjointed if the disseminator is deciding what information each person ‘needs to know’. I have worked with many skilled PM that can do this well. Unfortunately, I have seen a trend to hiring younger and less experienced (cheaper) staff that is not experienced. Information is portioned out so as to protect their interests/job and not those of the client or the project. In the end the architect will be held responsible for a design that does not meet the clients needs even when he did not receive all the pertinent data.

I also see a disconnect happening at the construction administration side of projects. This time it is more of a cost saving move by owners who may have facilities staff and feel they don’t need CM services from the architect. Decisions are made on the site that have a negative domino effect and could have been avoided if the architect was engage during the CM process. Usually the costs to reconcile any problems are far in excess of the fee an architect would have charged to attend weekly meetings. Again, a seasoned facilities engineer would know when to call in the architect or engineer when a question that is outside their expertise comes up. The trend to hiring younger, less seasoned staff has extended to these positions as well and they tend to shoot from the hip as a matter of course just to show they have game.

The other central factor in limiting services is the architect themselves. As access to projects becomes more competitive, fees become are being set for a limited scope of services, almost like a Chinese menu approach, so that the base fee presented with the bid is as low as possible. If you want services for specifying furniture that is extra, or you are allowed only one schematic design or no bid supervision. It can go on and on and the service that is offered for the base bid is almost useless in producing viable construction documents.

This can produce a disastrous soup when you combine documents that do not fully describe the scope of work to be done with inexperienced project management or facilities personnel. Peer review of documents would go a long way to aiding he architect in providing adequate documentation, but I don’t see much of that happening any more. The same goes for lessons learned sessions after the project is completed. No money in the budget to do that and so it is off to the next billable hour.

As we move forward with new dictates for greater sustainability and owners’ expectations of higher energy efficiency in the designs they are paying for I only see this scenario getting worse, except, that is, for lawyers.

As always, Nick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Musings, we welcome Rob Mathewson (@geedrarob) of Geedra.  Rob has spent twenty years in sales and marketing management roles with experience in industrial, consumer and construction markets. Rob believes the construction industry is ripe for innovation, based on its massive size, yet low productivity. Even with such inefficiencies, a building still rises from the ground. Rob’s goal with Geedra is to leverage technology to increase transparency and communication so that projects can be completed with less risk, effort and cost. Prior to founding Geedra, Rob was the Chief Marketing Officer for Construction Documentation Services, where he was responsible for sales, marketing and business development. He spent 15 years in the chemical distribution business, including eleven years as the Northwest Branch Manager of a $50 million distributor. Rob was the founder and CEO for On The Spot Games, a board game startup.

Digital photos and video have become increasingly important to the construction industry over the last 10 years.  Given the dynamic environment of a construction site, visual media are the ultimate data collection devices delivering more information that anyone could hope to capture with words or numbers. Though, the ease with which we can shoot photos at will generates a lot of visual chaff, unusable photos that take up our time and effort without delivering on their full potential value.  Below are six construction photo essentials to help you get the most out of your next visit to a job site with your camera in hand.

1.     Take good photographs

It should be a given, but unfortunately too many people take this basic point for granted.  Would-be valuable photographic evidence can be ruined because an image is out of focus or poorly lit. Pay attention to lighting, focus and framing. If you regularly take construction photos, then invest in a decent SLR camera and flash. If you’re rolling with your smartphone instead, then consider using a photo app to enhance the quality of your photo.

2.     Have a plan

When recording a construction installation as part of a planned photo-documentation effort (e.g. recording a post-tension deck prior to concrete placement), be methodical and consistent. Shoot the installation from at least 2 angles (up to 4 if possible) to negate the effects of shadows or obscured details and always move in the same direction (clockwise or counter, pick one) as you move from one angle to the next.  If necessary, shoot wide-angle area shots first, before moving in for the close-up. Moving predictably will help you identify photos or spot gaps in your coverage later.

The same rules apply if you are shooting reactive documentation in response to an incident or some other unanticipated condition.

3.     Put it in perspective

Context is as important in construction photo-documentation as any individual image. In addition to shooting area shots paired with close-ups, plan a series of shots to convey spatial relationships. Use rulers, crack meters or other props (even people) to establish scale in the image.  Placards or directional arrows can also help to orient future viewers of a photo.  Aside from improving the accuracy of the documentation, using the aforementioned contextual enhancements also provide protection against damage, sabotage or refutation of an individual photo.

4.     The power of information

A picture may be worth a thousand words, but a picture doesn’t have a volume control knob.  In other words, there may be details surrounding your installation or condition that the photo(s) cannot convey. Was it windy that day? Cold? Noisy? Written notes or recorded narration can provide critical complimentary information that further substantiates the visual evidence in your photo.

5.     Preview and review, or the truth can burn you

Cameras don’t discriminate. Your camera will record whatever appears before the lens. That could be an un-harnessed ironworker, a manager or engineer with a tool in their hand on a union jobsite or some other damnable offense. Protect yourself by quickly scanning the background before hitting the “Shutter” button and then routinely reviewing photos on your camera and again on your computer before including a potential ticking time bomb in a report or project archive.

6.     Be sure you can find the photo

Congratulations! You have painstakingly followed each of the steps to produce beautiful images, shot with a plan, perspective and in context with no unfortunate surprises lurking in the shadows. However, all of your hard work in photo-documentation will go to waste if you can’t find the right photo when you need it most. Be sure to create a photo filing plan that includes time and location references, and stick to it.

Inconsistency is the greatest threat to best-intended photo-documentation efforts. A moment of inattention can lead to a mis-filed photo, causing hours and hours of searching for a photo that may never be found again.

Rob and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Musings, we welcome Joshua Glazov for the first time.  Josh has been a construction lawyer since 1995. He practices at Much Shelist in Chicago and focuses on negotiating and preparing design and construction contracts for owners, contractors, and lenders, as well as preparing for, and confronting, construction related insolvency when a project participant goes bankrupt or a lender goes into FDIC receivership.  Josh publishes on these topics at his blogs: Construction Law Today and the Bank Failure Blog.

Last month the EPA finally issued their Renovation, Repair and Painting Rule (PDF), the one that sets up new requirements for work on projects that may involve lead paint.   The requirements are many complex.  You’ll need to become familiar with this rule if you do any renovation , repair, or painting work, especially of your work is on buildings built before lead paint was banned in 1978.

• You’ll need to become a certified by the EPA as a Certified Renovation Firm
• If you’re renovating, repairing, or painting at a building built before 1978, give the owners and occupants a copy of the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools (PDF) .  Yes there are exclusions and exemptions for pre-1978 buildings where giving the pamphlet isn’t required.  But it’s so easy to do, so why take the chance?  Just give it for each job.
• You’ll also need to ensure you get receipts from owners and occupants confirming that you gave them the Renovate Right Pamphlet.  The EPA published sample form (PDF) to use for these receipts.

There’s a lot more to ensuring you comply with this rule.  Some of the best place I’ve found to become familiar with this rule, what it covers, and how to comply:

• This chart (PDF) prepared by the National Center For Healthy Housing
• The EPA Small Entity Compliance Guide to Renovate Right (PDF)

As always, Josh and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this weeks Guest Post Friday here at Construction Law Musings, we welcome back Melissa Dewey Brumback.  Melissa (@melissabrumback) is a construction attorney and partner in the firm Ragsdale Liggett, PLLC in Raleigh.  Although not as old as some crusty lawyers, she has already spent over a decade representing engineers and architects, advising them on contract proposals to limit risks, and defending them when litigation does arise.  She is the author of the award-winning Construction Law in North Carolina a blog dedicated to the A/E community.   Melissa is rated AV, the best rating of the Martindale Hubbell  lawyer rating system, is a certified LEED Green Associate, and serves as President of the RL Mace Universal Design Institute.

Nixon.  Clinton.  Edwards.  It’s always the cover-up that brings a person trouble.  Likewise, attempting to ignore or cover up a possible claim against your work on a construction project can get you into financial trouble.

No one likes to face the reality of a possible professional negligence claim.  However, you must report any such claim as soon as you become aware of it.  Almost all insurance companies (and, specifically, Errors & Omissions policies) require notification right away.  Unlike a minor fender-bender, where you may be just as well off settling the case without reporting it to your insurance company, a construction lawsuit can mean big bucks.  A typical construction lawsuit can cost well over $100,000, and can take thousands of hours of man-hours.  If you face a claim of negligence, run, do not walk, to your carrier and ‘fess up.

For starters, if you do not report a possible claim right away, the insurance carrier could deny the claim.  Sure, no one likes to admit a possible mistake, or risk having their insurance premiums increase, but even worse would be to pay for insurance, delay reporting the claim, and then face the possibility of a claim denial.

Just as important, though, is that your insurance carrier is not the enemy.  They have a vested interest in keeping you out of expensive litigation and having you remain a long-time, paying customer.   Most construction liability carriers have experienced lawyers on staff who can help you minimize potential claims if you contact them immediately.  Sometimes, the carrier will hire a local construction law attorney for you, at their expense.  They can help you to respond to letters claiming errors or omissions in your work, so that you are protected from later lawsuits.  This service is called “loss prevention.” It is generally not considered a claim (since no lawsuit has yet been filed), you usually do not have to pay your deductible, and you get free, and often critical, assistance at the first whiff of potential trouble.

If you do not have insurance (although really, you should), you still should consider having a lawyer assist you behind the scenes to clear up any potential problems at the first sign of trouble, before they become exacerbated.  Some clients worry that if the owner or contractor knows they’ve “lawyered up,” that it will make matters worse or somehow indicate they are worried about their design.  Don’t let that stop you.  No one has to know that you’ve gotten a lawyer involved.  I’ve ghost-written many letters for clients, that they then put on their letterhead and send out to document a sticky situation.  The other side is none the wiser.

Be honest  and realistic about potential claims, and get help early.  You’ll be glad you did!

Melissa and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome back Vickie Pynchon for a (record?) 5th time. Vickie (@mediatesuccess) mediates with ADR Services, Inc. in Los Angeles, arbitrates for the American Arbitration Association and is the co-founder of She Negotiates Consulting and Training (http://shenegotiates.com).  Victoria has authored two books – The Grownups’ ABCs of Conflict Resolution and Success as a Mediator for Dummies (I personally recommend both). She is the “Dear Abby” of negotiation at The Daily Muse and write a thrice-weekly column at Forbes entitled “She Negotiates” (http://blogs.forbes.com/shenegotiates).

When Christopher graciously offered me his blog for a day to write about my new book – Success as a Mediator for Dummies – my first thought was that only mediators, not attorneys, were my market. Looking over the book now that it is published, I realize it contains a plethora of settlement and negotiation strategies and tactics that I badly needed to know and deploy throughout a twenty-five year commercial litigation career.

I also realized that I’d let Ury and Fisher’s seminal negotiation book, Getting to Yes, sit on my bookshelf unread for twenty years because I never wanted to settle. I wanted to win. The desire to win is what got me up every morning. I knew ninety percent of my cases would settle, but I believed they’d settle only if I made it abundantly clear to my opponents that they wouldn’t want to try their case against me. I believed settlement was all and only about power.

Now I know that settlement is only partially about power. It’s also about influence, relationship, and negotiation strategy and tactics.

When lawyers come to mediation with a recent courtroom success in their back pockets, they often ask me why they should settle when they’re winning, I invariably say “because tomorrow you’ll be losing.”

They know the truth in that.

But to settle, attorneys need to feel that they’re winning. Their clients, too, need to believe they’ve prevailed, not for the “game” aspect of the process, but because they sought a lawyer out in the first case because they were suffering from an injustice.

And if I can’t help lawyers help their clients experience some rough justice, I’m not doing my job.

If you find something useful in the small excerpt of my book below, I highly recommend it to Christopher’s lawyer readers. If you can make yourself a great negotiator – which is not hard once you learn the techniques – you can more consistently and dependably deliver justice to your clients.

So, below, is an excerpt from Chapter 13, Breaking Through Impasse. I hope you find it useful.

Lawyers who are highly skilled at discovering information through depositions, or examinations before trial, know the value of open-ended who, what, where, when and why questions. When it comes to understanding their own clients motivations or those of their opponents, they do not often ask any questions about what’s motivating the parties to the dispute.

In my new book, Success as a Mediator for Dummies, I give a two examples of the way in which the simple question why? broke impasse and resolved the disputes.

Stuck at Five Figures

The first case was a medical malpractice case brought by the widower of a woman who died at a dialysis center. He was adamant that he could not settle the suit for less than six figures. The insurance carrier was adamant that it would not go above $50,000. At this point, many mediators suggest a mediator’s proposal or ask the parties for a hypothetical bracket, i.e., if the Plaintiff comes below $100,000 would you be willing to put more than $50,000 on the table?

In my practice, I try to exhaust every option for helping the parties come to a solution they believe to be “fair” before I put my thumb on the scale of their potential resolution.

In the cases that follow, I simply asked Why?

Q. “Why do you want at least six figures in settlement of your malpractice suit against the dialysis center where your wife died?”

A. “Because I told my attorney when I hired him that I’d read in the paper about a veterinarian who paid $25,000 for the death of a dog. That’s what the dialysis center offered me not to file suit. A dog! If the insurance carrier pays anything less than $100,000, they’ll be treating my wife no better than a dog.”

Q. “Why will $100,000 make you feel like justice has been done, though? Why do you envision yourself being satisfied with that figure?”

A. “Well, I’d like to make myself a photo studio. I used to be a professional photographer, but that was 40 years ago. Now that I’m retired and a widow, I need something productive to do. After paying attorneys’ fees and expenses, I’d receive only $57,000, and I’m told that I’ll have to pay taxes on that, so it’ll all boil down to the price of that dog — $25,000 in my pocket. That’s the absolute minimum amount I’d need to set up my photo studio. It may also allow me to contribute to my granddaughter’s university fees. If I can’t help her out with tuition, I’m afraid she’s going to drop out.”

After I learned what this man wanted to do with his settlement, we made numerous calculations to determine whether he could achieve his desires for less. But we needn’t have bothered.

Something about his concern for his granddaughter and his plans to make a better life for himself softened the insurance carrier to pay him $100,000 for his loss. She stopped feeling as though he was just trying to get money out of her pocket. His story moved her.

She realized he had similar desires to her own. “I worry about my own daughter,” she told me. “I had an ample college fund, but then the recession hit, my husband left me, and I had to invade her savings account to pay the mortgage or I would have lost the house.

Finding and Resolving the Justice Issues

Most attorneys assume they know why their client wants to sue —money. And for an attorney who works in the world of rights and remedies, that assumption is fine.

For mediators, however, that same assumption is toxic. People don’t really go to lawyers or mediators to get money. It’s not an economic system. It’s the justice system.

People seek justice when they believe they’ve been wronged. Perhaps they want money, but they usually want more than that — to express outrage, get revenge, teach wrongdoers a lesson, or make sure that nobody else suffers this same injustice. Asking Why? helps you determine what the parties really want.

When the time comes to settle a case, clients want to know that

*          They’re not being taken advantage of.

*          They’re not getting less than the defendant is willing to pay or paying more than the plaintiff would accept.

*          They’re making the decision. (Nobody’s holding a gun to their head.)

In the first example, emotion played a large role in the settlement.  Diagnostic questions work equally well in “pure money” cases, however, as they do in cases that are obviously emotional – family law, injury cases, employment disputes and the like.

That’s what a dispute about the reimbursement of an overpayment by an insurance carrier to a physician looked like – it was just about money.

The two sides were stuck at a number I considered odd: $107,500 exactly.

The defendant physician thought the insurance carrier (owned by doctors) was trying to chisel him. He saw no reason why he had to repay them the $250,000 they’d negligently credited to his account. He was willing to pay some of it back, but more than $50,000 seemed wrong to him.

After hours of bargaining, I pulled the insurance carrier and its attorney aside and asked, “Why $107,500 exactly?”

In this case, the question Why? revealed one of the greatest contributors to impasse — the hidden constraint tying one of the party’s hands. “We settled another case exactly like this one,” said the insurance carrier.

“We overpaid a lot of doctors, including some who are on our board of directors. In our settlement agreement with one of them, we promised that we wouldn’t settle with anyone else for less than 43 percent of the total we overpaid. In this case, that’s $107,500. We genuinely can’t go under that number or we’d be in breach of contract.”

“May I tell that to the plaintiff?” I asked. “I believe it will help break impasse.”

Sure enough, as soon as the physician found out that a principle of basic fairness (everyone in the same situation should be treated the same) was underlying the offer, the justice issue underlying the money issue evaporated, and the case settled . . . for exactly $107,500.

Many of my fellow “Boomer” lawyers lament that everyone demands a mediator these days. “Why can’t we just settle it between ourselves like we used to in the ‘old days’” they ask. The answer to the question is, you can settle it like you did in the old days. Learn what your mediator knows, couple it with your deep understanding of the conflict, pick up the phone, and suggest a settlement meeting. After, of course, you pick up and read a copy of my new book!

As always Vickie and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

All of that said, I have also had a growth in the number of unsolicited offers for guest posts and a majority of these have been from folks with whom I have never had contact.  While these offers are generous and most likely well meaning, the increase in their numbers has led me to feel the need for a set of guidelines (albeit a loose set).  I want to keep the diversity of posts and subjects while making sure that the posts are relevant and at least tangentially related to the practice of construction law.  I also hope that these will help to answer questions that I get from new guest posters and save them some time.

So, without further ado, here are my guidelines:

• If you are not specifically asked to post or offered the opportunity by me, please contact me to introduce yourself first.  E-mails with “Guest Post” or the like as a subject and the body of which talks about how great your article will be are uniformly placed in the trash.
• The purpose of these guest posts is two fold.  First to add something interesting for the readers and second to give some exposure and a platform to the person posting.  Because of this, all guest posts will need a short bio (preferably with links that relate to you) and a head shot or logo.  This is for your benefit and hopefully you, as a guest poster, will get some benefit from your generous donation of time and effort.
• While some topics are inherently political (see the recent posts on potential changes to Virginia mechanic’s lien law), I try and keep this blog as apolitical as possible.  Your opinions and personal take on the legal and practice landscape of construction law (and even the occasional lawyer joke) are welcome and encouraged, just try and keep the commentary as apolitical as possible.  For instance, your thoughts on recent green building trends are encouraged but political commentary on the particular individuals that implement these changes are not as encouraged.

I don’t want these guidelines to limit the great posts that I have gotten here over the last 3 plus years, and none of the posts to date fall outside of them in any way.  In fact, aside from the occasional typo, I’ve had to exercise little or no editorial control and plan on continuing this trend.

What are your thoughts on the guidelines?  Are they too strict (I sure hope not)?  Anything here you see that could cause some posters to lose interest?  Please contact me with any issues or suggestions that you have with or for this set of guest post guidelines.

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As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.