there is a neighborhood property in dispute. I was asked to provide professional services and testify. I refused as it was two neighbors whom I know. I refused the offer but said I would if both parties agreed or the court requested me to survey and give opinion.
I am in Virginia and do not track this stuff but, does a court of law ever ask both parties to agree on the services of a third surveyor to help resolve an issue?
Does the attorney reply to my original refusal that 'court never requests the involvement of an expert witness' hold true to your state?
thanks, Hamilton
Boundary disputes are typically referred for mediation in the parts of urban Texas familiar to me where the courts have lots of other things on the docket and would prefer not to have to deal with boundary issues.
I don't know whether the practice of mediation of disputes is as popular in Virginia as it has become in Texas, but that would seem to me to be the perfect venue for you as disinterested expert to give an opinion. Mediators typically ask for their fees up front, BTW.
hpalmer, post: 434476, member: 336 wrote: there is a neighborhood property in dispute. I was asked to provide professional services and testify. I refused as it was two neighbors whom I know. I refused the offer but said I would if both parties agreed or the court requested me to survey and give opinion.
I am in Virginia and do not track this stuff but, does a court of law ever ask both parties to agree on the services of a third surveyor to help resolve an issue?Does the attorney reply to my original refusal that 'court never requests the involvement of an expert witness' hold true to your state?
thanks, Hamilton
"Special master"
hpalmer, post: 434476, member: 336 wrote: there is a neighborhood property in dispute. I was asked to provide professional services and testify. I refused as it was two neighbors whom I know. I refused the offer but said I would if both parties agreed or the court requested me to survey and give opinion.
I am in Virginia and do not track this stuff but, does a court of law ever ask both parties to agree on the services of a third surveyor to help resolve an issue?Does the attorney reply to my original refusal that 'court never requests the involvement of an expert witness' hold true to your state?
thanks, Hamilton
There are a number of ways this could go. The best option is to have a trained mediator extract a solution from the parties. I have provided this service and it is a natural extension of what we do. There are major pitfalls and considerations. It is difficult for some to remember that your expertise is only used to guide away from solutions the Court will reject or explaining nuances of terms so the written agreement says what the parties agreed to.
Next would be arbitration. That is where the Courts use you to impose a solution. Better money than mediation but not for the faint of heart. It also requires a unique set of credentials that few have.
The worst case scenario they push it to Court and the Attorneys win.
thebionicman, post: 434491, member: 8136 wrote: There are a number of ways this could go. The best option is to have a trained mediator extract a solution from the parties. I have provided this service and it is a natural extension of what we do.
In the situations familiar to me, the role of the surveyor is to help the mediator understand the merits of the cases that each side might present so that he can steer them in the right direction toward a settlement.
Both sides of a dispute could benefit from a knowledgeable surveyor who was not there to 'win'. Generally both parties would need to agree to any arbitration or mediation and their egos or their attorneys get in the way. Most boundary disputes are a waste of resources and create more ill will amongst neighbors. I recall two local 'murders' brought on because of either poor surveys and legal advice or neighbors trying to resolve the dispute themselves.
State laws need to change and give judges more authority to send parties to mediation to try and resolve boundary issues prior to a court hearing.
hpalmer, post: 434593, member: 336 wrote: Both sides of a dispute could benefit from a knowledgeable surveyor who was not there to 'win'. Generally both parties would need to agree to any arbitration or mediation and their egos or their attorneys get in the way. Most boundary disputes are a waste of resources and create more ill will amongst neighbors. I recall two local 'murders' brought on because of either poor surveys and legal advice or neighbors trying to resolve the dispute themselves.
State laws need to change and give judges more authority to send parties to mediation to try and resolve boundary issues prior to a court hearing.
I've got to tell you that in some of the mediations in which I've participated as a testifying expert for one party, the other side shopped around for an opinion and found one with a resume to support their view of the universe. I prepared a detailed report and very comprehensive map and the other side's consultant prepared something a great deal less than even the minimum techical standards require. Both were presented on an equal footing to the mediator.
The bottom line was that mediation is more about settling disputes than arriving at a settlement entirely consistent with boundary law. In that case the parties decided to split the baby and settled on a location whose only merit was that it was halfway between where the two experts had opined that it was.
HP, glad you are posting!
I have seen courts appoint an independent expert. But in both cases, it still got UGLY, with other experts eventually being involved. Kent's view of mediation resembles mine. I have seen the baby split a lot in mediation. Maybe that is how it got its name. I bet you made the right decision not to take a case involving two neighbors you know!
Chiming in from the great State of Alabama here. I have only been involved in one court case that went to trial. Luckily I was on the only possible winning side in a jury trial, that of the court appointed third party surveyor. In this case the two sides had differing surveys with a common surveyor twenty years apart. Each was tied from a differing north section corner and ran toward the middle of the north line. Never tiing across the entirety of the north line. Both pieces were from the same parent tract. My job was pretty simple. Where is the dividing line between that common portion of both tracts, set on the side of a mountain and followed step by step by the owners who had already come to blows numerous times.
Frank Willis, post: 434597, member: 472 wrote: HP, glad you are posting!
I have seen courts appoint an independent expert. But in both cases, it still got UGLY, with other experts eventually being involved. Kent's view of mediation resembles mine. I have seen the baby split a lot in mediation. Maybe that is how it got its name. I bet you made the right decision not to take a case involving two neighbors you know!
I'll amend my remarks by observing that in the case of dueling expert opinions, an objective expert can still be useful in helping the mediator eliminate the off-the-wall proposals that have serious flaws.
In one of the cases in which I was involved about five years ago, a case dealing with a boundary at a lake, about which I posted after the settlement, one of the exhibits offered to the mediator by the other side's expert purported to show the various boundary evidence overlaid upon a detailed aerial orthophoto. The problem was that the boundary data wasn't correctly registered on the orthophoto by about four feet, which, once that was corrected, changed the picture quite a bit. (This was a boundary dispute over lake frontage with a relatively high value that made the 4 ft. error a big deal in terms of loss suffered by my client.)
Kent McMillan, post: 434492, member: 3 wrote: In the situations familiar to me, the role of the surveyor is to help the mediator understand the merits of the cases that each side might present so that he can steer them in the right direction toward a settlement.
Then both the Surveyor and Mediator need to read a book.
thebionicman, post: 434604, member: 8136 wrote: Then both the Surveyor and Mediator need to read a book.
Not really. Mediation is a process of dispute resolution outside the court system. It is intended to move the parties toward some agreed resolution. The mediator has no authority to rule on the merits of the conflicting claims, but merely to advise them of what he thinks to be the likely outcome if things revert to trial court. So, at the end of the day, what matters is what the opposing parties will agree to. That is inherently a much different animal than what legal precedent might dictate.
Kent McMillan, post: 434605, member: 3 wrote: Not really. Mediation is a process of dispute resolution outside the court system. It is intended to move the parties toward some agreed resolution. The mediator has no authority to rule on the merits of the conflicting claims. So, at the end of the day, what matters is what the opposing parties will agree to. That is inherently a much different animal than what legal precedent might dictate.
On that i agree. As an educated and experienced Mediator, your earlier comments make me want to vomit. The role of the mediator is to extract a solution from the parties. The minute he steers things based on his perception of who is right and wrong he has failed. In the regulated States he would be done.
thebionicman, post: 434606, member: 8136 wrote: On that i agree. As an educated and experienced Mediator, your earlier comments make me want to vomit. The role of the mediator is to extract a solution from the parties. The minute he steers things based on his perception of who is right and wrong he has failed. In the regulated States he would be done.
Since mediation is a method of alternative dispute resolution outside the court system, the hammer that always exists behind mediation is that a particular matter will be returned to the court if no agreement between the parties is reached. If as a mediator you don't inform the oppposing parties of the merits of their cases, you are serving in a lesser role than the mediators familiar to me in Texas do.
Anything else is just baby splitting with no inducement to settle for half a baby.
Kent McMillan, post: 434607, member: 3 wrote: Since mediation is a method of alternative dispute resolution outside the court system, the hammer that always exists behind mediation is that a particular matter will be returned to the court if no agreement between the parties is reached. If as a mediator you don't inform the oppposing parties of the merits of their cases, you are serving in a lesser role than the mediators familiar to me in Texas do.
Anything else is just baby splitting with no inducement to settle for half a baby.
So in Kent land you throw out the legal and ethical responsibility to remain neutral? You should stick to things you know.
The Mediator outlines the best and worst possible outcomes and only directs the agreement away from things the Court will reject. Anoyone servung in the capacity of Mediator who takes sides or advises tge strength of a case should lose all Professional certifications permanently.
In Colorado, the sole purpose of the elected County Surveyor is to be an arm of the court for boundary disputes.
I have provided services to both parties several times. Usually they have agreed to this provision beforehand but once, I already was the surveyor for both parties.
I always ask a potential client if there is any dispute simmering when I am called upon to determine lines. If there is, I remind them that there is a very good possibility that I am going to add fire to the pot by rendering a third opinion. Those who cannot wrap their head around that concept do not rise to the level of client.
thebionicman, post: 434606, member: 8136 wrote: As an educated and experienced Mediator, your earlier comments make me want to vomit.
"All talent for writing consists, after all, of nothing more than choosing words. It's precision that gives writing power.?
-Gustave Flaubert
thebionicman, post: 434620, member: 8136 wrote: So in Kent land you throw out the legal and ethical responsibility to remain neutral? You should stick to things you know.
The Mediator outlines the best and worst possible outcomes and only directs the agreement away from things the Court will reject. Anoyone servung in the capacity of Mediator who takes sides or advises tge strength of a case should lose all Professional certifications permanently.
Well, you've essentially agreed with me if you advise the parties on the relative strengths of their cases. What you've posted is equivalent to exactly that, i.e. a case that depends upon something that a court would not entertain is a relatively weak case.
Kent McMillan, post: 434661, member: 3 wrote: Well, you've essentially agreed with me if you advise the parties on the relative strengths of their cases. What you've posted is equivalent to exactly that, i.e. a case that depends upon something that a court would not entertain is a relatively weak case.
No, it isn't. Courts dont reject settlements based on the strength of cases they never hear. Nice try.