Professional Background
I began my mediation career more than 30 years ago while at the Program on Negotiation, an outgrowth of the work Roger Fisher and William Ury did at Harvard Law, memorialized in Getting to Yes. I went on to train with Christopher Moore’s Collaborative Decision Resources, an early mediation training center. As a General Contractor and occasional Owner’s Representative in NYC since 1986, I joined the American Arbitration Association Roster in 1992 after publishing On Time and On Budget, based on work I did at PON examining issues in the construction industry and applying the Win/Win approach to resolving them. At the AAA, I have been one of a small handful of industry professionals in NYC, resulting in extensive experience in dispute resolution as an arbitrator and mediator over the last 33 years. I taught Residential Project Management at Columbia University for 15 years and, aside from the award-winning work at Rusk Renovations which I continue to run, I started a Risk Mitigation as a Service company called ProSentry, which has a separate CEO.
Path to Mediation
I have vivid memories of successfully resolving my first case at 2:00 in the morning. I believe strongly that mediation requires talent, training, and subject area knowledge. After years of construction arbitrations, I have developed an excellent sense of what issues will “turn” the case. Construction mediations often resolve on facts, more than questions of law or contract (though they are essential elements). Frequently, I find that there are missing facts, and I enjoy the process of digging into the facts of the case to help bring to light the issues that have kept the parties from resolving the issues themselves. I only mediate through the AAA, having benefitted from their training and organization over the years. As a busy construction professional, the AAA has allowed me to keep my focus on what I do best.
Role as a Neutral
I appreciate that the AAA is relentlessly neutral and advocates for courage and clarity while consistently avoiding commercial pressure. I enjoy the decades-long relationships I have with some of the staff and the opportunities to get together with my colleagues. There is always pressure for cases to settle, but when I can unearth the misunderstanding that is at the center of a dispute to the point that a professional or personal relationship can reignite, there is nothing more satisfying than that handshake as people put past differences behind them with a resolution that both sides crafted. There is also the sincere pleasure of working with the best of the Construction Bar. The quality of preparation, argument and professionalism is a pleasure to experience.
Legal/Professional Experience in Mediation
The experience of hundreds of cases has refined my understanding of complex areas of law and science, while my 40 years of construction has given me insight into the hidden world of the mechanical and personal sides of construction. It’s allowed me to ask questions that no one has thought to ask, that often reveal the very beginning of the issue and its resolution.
Mediation Philosophy
In construction, I do not believe settlement is possible without a meaningful exploration of the facts, law, and contract. I try to focus the parties during the preliminary conference on the critical issues that will affect the financial settlement of the case. From there, limited discovery and clear pre-mediation statements focus both sides further and allow the sides to consider the other side’s position before the mediation. I create a joint excel workbook, typically, to further clarify the math and the positions of each side to further reduce the case to its essential elements. I work to help both sides clearly articulate their case to the other side during opening statements, and I then lead the parties through a series of questions I’ve prepared for the mediation session that helps educate the principals and their representatives. The parties will decide the resolution, not me, and so I do my best to keep the sessions objective and light so that people can “understand” the whole case, often for the first time.
I find I often start with a process-based approach; then work with the parties in a more evaluative approach in the afternoon as I work individually with both sides; and then finally move into a horse trader, often using a mathematical approach pioneered by Howard Raifa and refined by my process over the years. I also find it’s useful to listen carefully to counsel, so while some cases keep both sides in the room much of the day, others never meet.
Memorable Mediation Experiences
I have had the honor of watching parties leave the room discussing future work. This is my highest honor.
Advice to Advocates & Parties
Don’t bring a knife to a gun fight. In a mediation, that means editing down your case to its clearest, most compelling arguments, facts and documents. And then walking in ready to listen. Often, during the mediation, the parties hear something they didn’t know before—a fact, a contract clause, a drawing note—that will change how the case could turn out during a third-party adjudication. Parties must also listen and acknowledge the opposing arguments. When a person knows they’ve been heard, they can often, finally, begin to listen.
Evolving ADR Landscape
Before COVID, the thought of a virtual mediation seemed absurd. We’ve all learned that cases can be settled over a screen. In some instances that are document-heavy, or requiring insurance company involvement, or multiple parties that are hard to get together, virtual mediation offers substantial benefits. In general, I see a great willingness to work through the issues in mediation and to not hold back the “best” evidence until a later arbitration or litigation as was once the case.
Personal Qualities & Skills
Listening is the single most important skill. Hearing and then putting facts into context is critical. Doing the homework of studying evidence, premediation statements, drawings, etc. and then preparing documents that boil the case down to its essential elements are likewise crucial. And finally, when possible, to maintain a light, objective atmosphere that helps people feel safe and respected leads to the collaborative work that ends in lasting settlements. A successful mediator carefully listens to both sides and is able to follow the contract along with the evidence presented for the respective claims. While it can be very emotional for the parties, particularly in residential claims, the mediator must remain calm and organized and be guided by the contract and the facts. I always ask the parties to provide a spreadsheet of their claims and counterclaims, so we can methodically go through them and fairly determine what each side owes/is entitled to. I also am always open to personal calls with the attorneys to discuss offers and counter offers.
Beyond Mediation
I enjoy my family immensely, I enjoy working on houses and cars. I like to cook and eat, see theater and art, and travel. I enjoy snow and water skiing, bicycling, and working out in general. And nothing clears my head like a big chain saw and a bigger tree.