thebionicman, post: 434699, member: 8136 wrote: No, it isn't. Courts dont reject settlements based on the strength of cases they never hear. Nice try.
Well, that wasn't what I posted. Going to court if mediation fails is what drives most mediations and, at least in the mediations I've sat in on, both sides have their lawyers with them who are quite conscious of the alternative to a settlement. Mediators themselves are typically attorneys, many of them former judges, and usually have a good idea about the relative strength of the positions of the parties.
Knowing that one side has weak evidence that they have presented to the mediator tends to influence outcomes. That's just the reality of the process. Naturally, both sides attempt to dress up their case in mediation and, when land matters are at issue, there are usually surveyors involved. The smarter attorneys will ask their client's surveyor to sit in to advise them in the fluid back and forth of offers and counter offers.
Kent McMillan, post: 434703, member: 3 wrote: Well, that wasn't what I posted. Going to court if mediation fails is what drives most mediations and, at least in the mediations I've sat in on, both sides have their lawyers with them who are quite conscious of the alternative to a settlement. Mediators themselves are typically attorneys, many of them former judges, and usually have a good idea about the relative strength of the positions of the parties.
Knowing that one side has weak evidence that they have presented to the mediator tends to influence outcomes. That's just the reality of the process. Naturally, both sides attempt to dress up their case in mediation and, when land matters are at issue, there are usually surveyors involved. The smarter attorneys will ask their client's surveyor to sit in to advise them in the fluid back and forth of offers and counter offers.
The process and people you describe is a mashup of arbritration and mediation. These two things bear little resemblance and are never confused by the courts.
Although loosely regulated, mediators are generally not from the legal professions and the education requirements are not law based.
This is exactly why i quit conversing with you. Even when completely outside of your knowledge base you spew garbage with no foundation, misleading those familiar with your technical survey knowledge. Your desire to be the superior expert eclipses your very real value.
thebionicman, post: 434773, member: 8136 wrote: The process and people you describe is a mashup of arbritration and mediation. These two things bear little resemblance and are never confused by the courts.
Although loosely regulated, mediators are generally not from the legal professions and the education requirements are not law based.
This is exactly why i quit conversing with you. Even when completely outside of your knowledge base you spew garbage with no foundation, misleading those familiar with your technical survey knowledge. Your desire to be the superior expert eclipses your very real value.
Watch out for the psycho post misrepresenting what you wrote forced into a ridiculous straw man argument.
Dave Karoly, post: 434774, member: 94 wrote: Watch out for the psycho post misrepresenting what you wrote forced into a ridiculous straw man argument.
It's a little early in the day for that; psycho straw man posts usually seem to be timed to coincide with the evening's second bottle of C??tes du Rh??ne.
thebionicman, post: 434773, member: 8136 wrote: Although loosely regulated, mediators are generally not from the legal professions and the education requirements are not law based.
Obviously, Texas is Texas and wherever you are is Elsewhere. In Austin, nearly all of the mediators are ... attorneys and the process of mediation as a means of reaching a settlement out of court also involves the parties's attorneys. A quick google of "Mediation Austin TX" will demonstrate the truth of the first proposition and the second should be self-evident.
James Fleming, post: 434785, member: 136 wrote: It's a little early in the day for that; psycho straw man posts usually seem to be timed to coincide with the evening's second bottle of C??tes du Rh??ne.
As long as it's not from California.
As for the role of the surveyor in the mediation of land-related matters that involve the conclusions of a surveyor, in the mediations I've been involved in, which have mostly involved disputes as to (a) boundaries, (b) easement rights, and (c) partitions, I submitted reports upon my conclusions specifically FOR THE PURPOSES OF MEDIATION to acquaint the mediator with the essential elements of the sort of evidence and case that my clients could show in support of their claims.
This wasn't done because the mediator needed some extra paper in his recycling bin, but for the purposes of orientation to the issues and the specific depth and quality of evidence behind an opinion. Why did the mediator care whether a position was based upon a specious claim or not? I think it's reasonable to conclude from observation that mediators do play a role in steering the exchanges between the parties, based in part upon the fact that they aren't just members of the clergy, but reasonably sophisticated third parties who, being mostly attorneys, tend to be familiar with where things will go if no settlement is reached.
As for why surveyors are involved in mediation of land disputes, it's mainly to sit and listen and give a client's attorney advice. The most critical point is when the actual settlement agreement is drafted and the legitimate role of the surveyor is to make sure that the language is adequate and practical. For example, agreeing that a boundary follows a highly irregular fence is usually impractical, but appealing to the layperson, and it's helpful to have a surveyor recommend more practical language. Likewise, there have been cases where a boundary was agreed to be in a postiion that could not actually be located on the ground with certainty as initially described in the proposed settlement.
What you just described Kent is more appropriately referred to as arbitration. At best is is a blending of arbitration and mediation. A mediator is a professional that assists the opposing parties to find some common ground to agree upon. It does NOT include any assessment as to which party has the "stronger case".
This isn't rocket science, but just maybe, too, also, Texas has a completely different way of defining the term mediation arbitration er, mediarbitation.
Gene Kooper, post: 434799, member: 9850 wrote: This isn't rocket science, but just maybe, too, also, Texas has a completely different way of defining the term
mediationarbitrationer, mediarbitation.
media-arbiration? Does that have anything to do with Fake News?
Gene Kooper, post: 434799, member: 9850 wrote: A mediator is a professional that assists the opposing parties to find some common ground to agree upon. It does NOT include any assessment as to which party has the "stronger case".
A skilled mediator, though, can steer the process by reminding one side with a largely deficient case what they are up against. Obviously, it won't be in the manner you imagine, i.e. "y'all sure have a weak case", but by reference to what the other side has produced that the parties will recognize that they have not. "Your expert did not submit a report," would work perfectly well for that.
Mediation as I've observed it is both carrot and stick. The carrot is to get something with relative certainty and the stick is to risk going to trial with the chance of getting less than nothing.
Kent McMillan, post: 434811, member: 3 wrote: Mediation as I've observed it is both carrot and stick. The carrot is to get something with relative certainty and the stick is to risk going to trial with the chance of getting less than nothing.
Mediation is NOT a stick. Do you really believe that threatening a party with litigation or coercing that party to settle by flouting your superior knowledge of boundary law is acting in good faith as a mediator? I realize it is futile to challenge you and your contrived definition of the term, so I'll redirect my question to other Texas surveyors and whether they concur with your definition of the term.
In Colorado, I can assist the property owners in executing a boundary line agreement. I would never force my solution onto the parties, nor assess the strengths and/or weaknesses of their positions. My only concern is that the boundary line is either in dispute, uncertain or ambiguous. It cannot be a known boundary that the parties wish to move to a convenient position (i.e. boundary line adjustment). If the parties are able to reach an agreement, I am happy to submit a fixed fee to monument the line and prepare a land survey plat.
Gene Kooper, post: 434870, member: 9850 wrote: Mediation is NOT a stick.
In the real world, the process of mediation IS driven forward by the multiple sticks that await if the matter is returned to the court unsettled. I have no idea how you might have concluded otherwise. The typical mediated settlement is one that is unsatisfactory to both parties in some way, so why do you imagine that one of the litigants might voluntarily choose an outcome that they didn't want unless it was fear of the stick, i.e. the even worse outcome that might result at trial?
One of the more interesting matters I've worked on as a testifying expert dealt with an easement rights dispute that had originated in how a partition was made of a large ranch in 1917. The litigants were third and fourth-generation descendants of the original parties to the partition, one group of which had taken a more rural trajectory in goat and cattle ranching and other of which were urban professionals, mostly, lawyers and CPAs.
The rural group were convinced that they were correct in their contention that no easement existed along a particular road. They had known the land all their lives, after all, and as lessees of the grazing rights had watched the urban professional group come and go seasonally during hunting season. What ultimately settled the matter was some catharsis of the alienation between them coupled with an expert who was able to tell them some things about their common ancestor and the land in question that none of them knew. It was the carrot and stick because the process of mediation exposed them to the knowledge that what they had thought to be a complete set of facts was considerably less than complete and they were leery of what else might come up at trial. In other words, the certain outcome that they all expected was no longer certain.
I have to stop reading this thread, Kent. My sides are starting to ache from giggling so much at your repeated insistence that mediation is an adversarial legal proceeding. :rofl:
Please carry on in my absence.
Gene Kooper, post: 434886, member: 9850 wrote: I have to stop reading this thread, Kent. My sides are starting to ache from giggling so much at your repeated insistence that mediation is an adversarial legal proceeding. :rofl:
Please carry on in my absence.
You obviously don't operate in the "real world."
Gene Kooper, post: 434886, member: 9850 wrote: I have to stop reading this thread, Kent. My sides are starting to ache from giggling so much at your repeated insistence that mediation is an adversarial legal proceeding.
The mediations to reach an out of court settlement are invariably ones with competing interests. That is a given. Were there not, there would have been no lawsuit to be settled in the first place. I guess I've never seen that land of magic unicorns where lawsuits were not adversarial legal proceedings and mediations arising from them didn't have exactly the same adversaries, each wanting to have some result that the other did not.
As for the giggling, you're in East Bongwater, Colorado, right?
Dave Karoly, post: 434888, member: 94 wrote: You obviously don't operate in the "real world."
Well, of course I don't.
You know more than most (esp. after your two visits) how much of an odd duck I am. Now, go have some fun with that new Lego accessory kit. 😉