{"id":1228,"date":"2013-03-21T18:11:02","date_gmt":"2013-03-21T18:11:02","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=1228"},"modified":"2013-03-21T18:11:02","modified_gmt":"2013-03-21T18:11:02","slug":"the-role-of-a-professional-engineer-assisting-counsel-during-alternate-dispute-resolution-adr-update","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2013\/03\/21\/the-role-of-a-professional-engineer-assisting-counsel-during-alternate-dispute-resolution-adr-update\/","title":{"rendered":"The role of a professional engineer assisting counsel during Alternate Dispute Resolution (ADR). Update"},"content":{"rendered":"

(<\/em><\/strong>This is an update of an item I posted in November, 2012 – see Ref. 11 below, as part of a series on the role of a professional engineer assisting counsel in civil litigation<\/em> – see Bibliography below.<\/strong><\/em><\/strong><\/p>\n

The update\u00a0consists of\u00a0three case histories\u00a0of forensic\u00a0engineering investigations that provided evidence\u00a0relied on\u00a0in\u00a0Alternate Dispute Resolution.\u00a0 The case histories are in italics<\/strong><\/span><\/em>) <\/em><\/strong><\/p>\n

Original\u00a0article updated with three case histories<\/strong><\/span><\/h1>\n

Alternate dispute resolution, ADR, refers to resolving disputes in ways other than going to court.<\/p>\n

The role of professional engineers in ADR is to provide technical data, conclusions and opinions as to the cause of engineering failures, industrial, traffic and aviation accidents, and slips, trips and falls.\u00a0 This type of information contributes to intelligent decisions as a basis for the resolution of disputes with technical issues.<\/p>\n

This blog, one of a series, lists the tasks – itemized below, of a professional engineer’s role in ADR<\/p>\n

In some areas, over 90% of lawsuits involving the built environment settle before going to trial, and this is often facilitated with evidence from forensic engineering investigations.<\/p>\n

ADR can be carried out at any stage in civil litigation \u2013 even before an action is filed.\u00a0 Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place.\u00a0 At that point, each party is more fully aware of the other side\u2019s case.\u00a0 Each party has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.<\/p>\n

There are three commonly used methods of ADR.\u00a0 Other forms of alternate dispute resolution are used but the following are particularly relevant to civil litigation.<\/p>\n

    \n
  • Negotiation<\/li>\n
  • Mediation<\/li>\n
  • Arbitration<\/li>\n<\/ul>\n

    All forms of ADR rely on a presentation of facts, and resolution based in part on a consideration of the facts.<\/p>\n

    A professional engineer’s services are generally the same regardless of the ADR method selected by the client.<\/p>\n

      \n
    1. Review and examine all technical documentation, electronic data, physical evidence, tangible exhibits, demonstrative evidence, and transcripts of proceedings on the case<\/em><\/strong><\/li>\n
    2. Visit and briefly re-examine the site<\/em><\/strong><\/li>\n
    3. Review and confirm the forensic engineering investigations carried out by the different parties to the dispute, the data and technical evidence gathered, the analyses and reasoning, the findings, the technical facts, the conclusions, and the opinions formed on the cause of the engineering failure, poor structural performance, or personal injury\/fatal accident<\/em><\/strong><\/li>\n
    4. Review estimated costs to repair the damaged structure<\/em><\/strong><\/li>\n
    5. Review the claims and the technical strengths and weaknesses of each party to the dispute, including counter claims and cross claims <\/em><\/strong><\/li>\n
    6. Review the technical facts given in support of each party’s position and the technical evidence supporting the facts<\/em><\/strong><\/li>\n
    7. Confer with counsel about their clear understanding of the technical evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based<\/em><\/strong><\/li>\n
    8. Prepare to testify as an expert witness if required<\/em><\/strong><\/li>\n
    9. Provide the heari<\/em><\/strong>ng with technical data and information to facilitate an understanding of the technical issues<\/em><\/strong><\/li>\n
    10. Interpret and explain technical issues to a mediator or arbitrator<\/em><\/strong><\/li>\n
    11. Serve as a mediator or arbitrator if the dispute has technical issues<\/em><\/strong><\/li>\n
    12. Assist counsel in assessing technical elements in offers made by different parties to facilitate settlement<\/em><\/strong><\/li>\n<\/ol>\n

      Negotiation<\/strong><\/p>\n

      In negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.<\/p>\n

      If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.\u00a0 This way the parties can work out a solution that best meets the needs and interests of all parties.<\/p>\n

      In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.<\/p>\n

      Mediation<\/strong><\/p>\n

      In mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.\u00a0 Mediation often leads to resolutions that are tailored to the needs of all parties.\u00a0 The process is informal and completely confidential.\u00a0 As a result parties may speak more openly than in court.<\/p>\n

      Case #1: Oil tank failure:<\/span> <\/em>An example of a dispute that was resolved in mediation\u00a0<\/em>would be a residential fuel oil tank falling into an excavation for a basement and spilling fuel oil onto the ground.\u00a0 The homeowner and their insurance company send letters to the excavating company stating they were responsible for the incident and asking the company to pay for the clean-up of the contaminated ground.\u00a0 The company does not agree and a mediation is scheduled.\u00a0 <\/em><\/span><\/strong><\/p>\n

      \u00a0\u00a0\u00a0\u00a0\u00a0 Counsel for the homeowner retained the author who reviewed documentation on the case, including photographs, applied very basic soil mechanics principles – one of the sciences that underlies foundation engineering, to the field situation and explained in a report why the tank fell into the excavation.\u00a0 Agreement was subsequently reached in the mediation.<\/em><\/span><\/strong><\/p>\n

      Arbitration<\/strong><\/p>\n

      In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.\u00a0 At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.<\/p>\n

      Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.\u00a0 Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.<\/p>\n

      Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, engineering.<\/p>\n

      The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.\u00a0 The arbitrator will explain how the decision was reached.<\/p>\n

      If the applicable law allows, parties can decide in advance whether the arbitrator\u2019s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.<\/p>\n

      Case #2:\u00a0Foundation failure\u00a0<\/strong><\/span>The author was retained well before civil litigation was begun to investigate the cause of cracks in the concrete block walls of a food processing facility in an industrial park.\u00a0 The cracks continued to appear 10 years after construction of the facility.\u00a0 <\/em><\/span><\/strong><\/p>\n

      \u00a0\u00a0\u00a0\u00a0\u00a0 Engineering investigation involved surveying the location and size of the cracks, precise elevation surveys, researching earthworks construction during development of the park, and a geotechnical investigation of the foundation soil conditions.\u00a0 <\/em><\/span><\/strong><\/p>\n

      \u00a0\u00a0\u00a0\u00a0\u00a0 Analysis of the data concluded that the cracks were caused by foundation settlement in a poorly constructed fill.\u00a0 The fill was grouted to increase its rigidity and stop the settlement.\u00a0 The several parties involved in the action settled a multimillion dollar claim out of court.<\/em><\/span><\/strong><\/p>\n

      Case #3: Bridge failure\u00a0<\/span>Another case that began early in the litigation process required the author to investigate the cause of a 22 foot span soil-steel bridge to fail.\u00a0 The bridge – a large, corrugated steel culvert, carried a residential road over a stream.\u00a0 A large hole formed in the road above the bridge when it collapsed injuring the driver of a car when they drove into the hole.<\/em><\/span><\/strong><\/p>\n

      \u00a0\u00a0\u00a0\u00a0\u00a0 The collapsed bridge was disposed of and a new bridge constructed before the author examined the site, making the investigation more difficult.\u00a0 Several follow-up investigations were carried out.\u00a0 The following were particularly valuable: Study of photographs taken on the day the bridge failed, examination of other steel culverts in the immediate area, a topographic survey of the site, and review of the documented modes of failure of these types of bridges.\u00a0 <\/em><\/span><\/strong><\/p>\n

      \u00a0\u00a0\u00a0\u00a0\u00a0 Analysis of the data concluded that the bridge failed because of corrosion of the haunches of the steel culvert and inadequate inlet protection.\u00a0 The parties involved in the civil litigation settled without going to trial.<\/em><\/span><\/strong><\/p>\n

      Biliography<\/strong><\/p>\n

        \n
      1. What is forensic engineering<\/strong>?, published, November 20, 2012<\/li>\n
      2. Writing forensic engineering reports<\/strong>, published, November 6, 2012<\/li>\n
      3. Steps in the civil litigation process<\/strong>, published, August 28, 2012<\/li>\n
      4. Steps in the forensic engineering investigative process<\/strong>, published October 26, 2012<\/li>\n
      5. The role of a professional engineer in counsel’s decision to take a case<\/strong>, published June 26, 2012<\/li>\n
      6. The role of a professional engineer assisting counsel prepare a Notice of Claim<\/strong>, published July 26, 2012<\/li>\n
      7. The role of a professional engineer assisting counsel prepare a Statement of Claim<\/strong>, published September 11, 2012<\/li>\n
      8. The role of a professional engineer assisting counsel prepare a Statement of Defence<\/strong>, published September 26, 2012<\/li>\n
      9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents<\/strong>, published October 4, 2012<\/li>\n
      10. The role of a professional engineer assisting counsel during Discovery<\/strong>, published October 16, 2012<\/li>\n
      11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR)<\/strong>, published November 16, 2012<\/li>\n
      12. The role of a professional engineer assisting counsel prepare for a Settlement Conference<\/strong>, published November 29, 2012<\/li>\n
      13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference<\/strong>, published December 12, 2012<\/li>\n
      14. The role of a professional engineer assisting counsel prepare for Trial<\/strong>, published, December 19, 2012<\/li>\n
      15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com<\/a>, info@argusmediaindia.com<\/a><\/li>\n<\/ol>\n

         <\/p>\n

         <\/p>\n","protected":false},"excerpt":{"rendered":"

        (This is an update of an item I posted in November, 2012 – see Ref. 11 below, as part of a series on the role of a professional engineer assisting counsel in civil litigation – see Bibliography below. The update\u00a0consists … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1228"}],"collection":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/comments?post=1228"}],"version-history":[{"count":23,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1228\/revisions"}],"predecessor-version":[{"id":1252,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/1228\/revisions\/1252"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=1228"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=1228"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=1228"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}