I'm sure that anyone who has dealt with the process of litigating boundary disputes has wished for a better model than the form of "telegraph" that passing all communications through attorneys entails. Today's epiphany was that what is needed is a surveyor/mediator. Most land-related lawsuits in Texas are already referred to mediation for possible resolution before they go to trial, so this is hardly a new idea.
The new idea is that the mediator be a surveyor and that the process take place not between the litigants, but between their surveyors. When two surveyors arrive at differing opinions on some land surveying matter, who better than to recommend a resolution than a disinterested third party with expertise at least equal to that of the surveyors who have been hired by the parties directly?
The model is that of binding arbitration. Both surveyors present the merits of their judgments and the evidence upon which the same were based and a third expert surveyor weighs them. The parties agree to be bound by the arbitrator's findings and to have the arbitrator divide the cost of his services between the litigants on some basis that resembles "whoever is the least right pays the most". The arbitrator reports his judgments in the matter to the court as well as refers any matters that he or she decides are more properly questions of law than of surveying.
The judge at a hearing I attended today seemed invigorated by the prospect of not having to dip into the technical arcana of land surveying (going so far as to characterize the proposal as "lucid" and "rational"), so I'm inclined to think this is a BIG IDEA.
Sounds like a great idea.... IN THEORY. While one fairly intelligent judge may like the idea, lawyers as a whole (hole?) would not ever let another quasi-law informed group take any monies out of their pockets. Maybe this should be the idea behind a "County Surveyor", or one of the functions of his office. But hey... that's just my 0.04'.
You might be on to something Kent. I really believe your process has merit.
However I'm thinking the fly in the ointment is the fact that equitable agreements might be reached and attorney fees might be finite....heresy!
> However I'm thinking the fly in the ointment is the fact that equitable agreements might be reached and attorney fees might be finite....heresy!
Well, the role that mediation serves at present is that it is typically a recourse after the parties have paid enough money to attorneys that they are amenable to some other method of arriving at a resolution. I don't see that changing for the foreseeable future.
I'm sure you've sat in on mediation sessions where the mediator was a skilled participant, but knew nothing about surveying or land boundaries. My thought was that someone who actually knew something would make the system work better and it all wouldn't end up as a "split the baby in half" solution that family law courts favor.
> Sounds like a great idea.... IN THEORY. While one fairly intelligent judge may like the idea, lawyers as a whole (hole?) would not ever let another quasi-law informed group take any monies out of their pockets.
Well, most mediators are lawyers and mediation is a step that is arrived at typically after substantial fees have been incurred. I'm just thinking about how attractive it probably would be to all of the participants to have a mediation process that involved just the surveyors as proxies.
It's understood that most boundary disputes are merely a vehicle for the personal antipathies of the parties to each other, but using surveyors as surrogates may be an important part of the resolution process.
at least it would be a case where mediation would have the chance of working
(grumbling as my experiences with mediation have been less than satisfactory)
If they appoint you the mediator or arbitrator I'm taking my compass and going home:-(
Kent, as usual, your thoughts and postings make a LOT of sense. In an honest and moral world, what you recommend seems to be perfect. And your solution is honorable.
However, based upon my personal experiences in forensic surveying and forensic engineering, I do not believe this would work consistently for the following reasons:
1. There are experts out there in all fields who will say damn near anything. You cannot negotiate with them on a level playing field. They are driven by money, bias, ego, competition and pressure from their clients.
2. Many experts get outside their fields and try to be experts in fields in which they are not truly competent.
3. Even when trying to be objective, it is difficult to maintain a bias-free position when a case gets complex. I force it on myself, and when I started doing this, I made a decision to stick with it and accepted the assumption that about half of my forensic clients would fire me.
4. Mediation or arbitration arise generally after threats of litigation--after attorneys are involved, and attorneys are usually part of both. This can cloud the objective picture, especially when case law is applied to things that just don't make sense or seem right to the practicing surveyor.
5. Arbitration generally (at least in Louisiana) is binding, not subject to appeal. There is a legitimate reason for appeal. I have been in arbitration as an expert multiple times. On the ones I was involved in, they were all binding, and there seemed to be a lot of splitting of the baby.
I went into the first (and biggest forensic case of my career) assuming that the surveyors on the other side would be working with me to resolve the solution objectively. To say that my expectations did not come to fruition would be the biggest understatement I have ever made in my life.
That said, I think there is still room for your suggestions, but for someone to go into a big case where a lot of money and/or pride is involved, with the assumption that the litigants and all experts would comply, can only lead to potential disaster and an attack on your reputation. It can be like fighting the Taliban, and they can be like termites--when you are sleeping they are chewing.
I am writing a book on forensic engineering and surveying and will save specific comments until I release it. Some of it is hard for me to believe even though I experienced it.
That said, I think your idea has some extremely good points and is a viewpoint of a true professional. On clean cases it would work. On cases that involve legal precedent and legal approaches to poorly defined legal concepts (which is very often the case), it won't work. The surveyor trying to arbitrate will be driven insane. If one side does not like the outcome, and it is not binding (right or wrong), the argument will not end without a judge and a gavel, an appellate court, or the state supreme court.
> 1. There are experts out there in all fields who will say damn near anything. You cannot negotiate with them on a level playing field. They are driven by money, bias, ego, competition and pressure from their clients.
But aren't there at least a few surveyors with long experience, genuine expertise, and sterling reputations who would be perfectly qualified to evaluate the evidence and opinions of two other surveyors?
> 2. Many experts get outside their fields and try to be experts in fields in which they are not truly competent.
Well, a surveyor-negotiator should be able to cut through the BS. If he or she can't determine that one opinion is based upon the major weight of the evidence and the other not, he or she wouldn't be qualified for the "3rd Surveyor" role. I don't see any reason why the surveyor-negotiator wouldn't in many cases want to actually go out on the ground and see the evidence in question if that is relevant.
> 3. Even when trying to be objective, it is difficult to maintain a bias-free position when a case gets complex. I force it on myself, and when I started doing this, I made a decision to stick with it and accepted the assumption that about half of my forensic clients would fire me.
Well, the surveyor-negotiator's fee would be paid for by both parties according to some scheme of division to be decided by the surveyor-negotiator. What I think that means is that if one side wants to spend lots of time presenting spurious evidence that the negotiator considers to be mostly worthless, then the effort is charged to them.
> 4. Mediation or arbitration arise generally after threats of litigation--after attorneys are involved, and attorneys are usually part of both. This can cloud the objective picture, especially when case law is applied to things that just don't make sense or seem right to the practicing surveyor.
The reality I've experienced seems to be that the litigants recognize the merits of arbitration only after they've spent a few tens of thousands on attorney's fees and are looking at spending that or much more to carry things forward. I do think it would be legitimate for a surveyor-negotiator to refer some point of law to a court to decide if he or she considers the matter unclear. Most boundary disputes I've seen usually don't fall into that category.
> 5. Arbitration generally (at least in Louisiana) is binding, not subject to appeal. There is a legitimate reason for appeal. I have been in arbitration as an expert multiple times. On the ones I was involved in, they were all binding, and there seemed to be a lot of splitting of the baby.
On complicated boundary cases, it's conceivable that the surveyor-negotiator might not agree with either surveyor on all points, that his or her decision is a mix-and-match solution.
> I went into the first (and biggest forensic case of my career) assuming that the surveyors on the other side would be working with me to resolve the solution objectively. To say that my expectations did not come to fruition would be the biggest understatement I have ever made in my life.
Yes, the survey field in not free of that, unfortunately, but that is what the role of the Third Surveyor is to cut through.
I support the concept
In theory. Maybe not in a practical, one-size fits all type of solution.
Knowing all of the survey books and all of the survey training in general does not make one an expert on the uniqueness of many communities. I would imagine that the lack of knowledge of issues unique to the specific locale is much of the reason for disagreement between the first two surveyors. Bringing in a third surveyor who is also ignorant of that local uniqueness (but with the title SURVEY GOD) may not result in the correct result.
The second problem is to actually locate a practicing surveyor who really, truly is far more knowledgeable than the two already involved in the case. Writing textbooks and testifying in court does not make one an expert on Sunnyhill Acres, an addition to the Town, now City, of Underwood, Esperanza County, New Dakota. Having one's signature on thousands of plats and corner reports does not assure that that person actually had any direct involvement with all of those projects.
On the other hand, I would much rather have a third surveyor serve in the mediator role than someone who went to law school many years ago.
I support the concept
> In theory. Maybe not in a practical, one-size fits all type of solution.
>
> Knowing all of the survey books and all of the survey training in general does not make one an expert on the uniqueness of many communities. I would imagine that the lack of knowledge of issues unique to the specific locale is much of the reason for disagreement between the first two surveyors. Bringing in a third surveyor who is also ignorant of that local uniqueness (but with the title SURVEY GOD) may not result in the correct result.
Actually, the role of the surveyor-arbitrator isn't to declare the answer, but to examine the evidence upon which the surveys were based and to consider the opinions based upon it. In a typical boundary case, it isn't a close call, unfortunately. I can also imagine that the surveyor-arbitrator might decide that neither survey was based upon sufficient evidence to render an informed opinion and send them both back to the clerk's office for research or to the field.
Well, I'd think any real expert surveyor would want to know about local issues relevant to the boundaries in dispute. Ideally, the surveyor-arbitrator would practice in a similar area, not be pulled in from some remote locality, but if that isn't possible, then I think that things could still proceed. I don't see the survey-arbitration as being a one day affair, but one that involves some back and forth exchanges of information and answers to questions.
> The second problem is to actually locate a practicing surveyor who really, truly is far more knowledgeable than the two already involved in the case.
Greater knowledge isn't as important, I wouldn't think, as broad experience, knowledge of the applicable law, sound judgment, and good communication skills.
> Writing textbooks and testifying in court does not make one an expert on Sunnyhill Acres, an addition to the Town, now City, of Underwood, Esperanza County, New Dakota.
I can't think of a single author of a surveying text who would be qualified to be a surveyor-negotiator. Most of the folks on the seminar circuit are primarily BS artists.
> Having one's signature on thousands of plats and corner reports does not assure that that person actually had any direct involvement with all of those projects.
Would you say that you truly cannot think of a single surveyor in the entire state where you practice whose judgment you implicitly trust?
> On the other hand, I would much rather have a third surveyor serve in the mediator role than someone who went to law school many years ago.
That's exactly the point. The perfect solution would be to have all surveyors equally diligent, skilled, and acquainted with the principles of the law that guide their work. Since that isn't going to happen, this is a second best solution.
It could work..
..if a location of a boundary was the only issue being argued.
I testified in a case where a real estate investor bought 5 city lots (25'x140' ea.) on a corner. The property should have been 125'x140'. Sonic Industries became interested in the property and negotiations began.
A survey was performed. Due to an error in an eighty year old plat (having to do with block lengths and street r/w), that end of the block was actually 20' mol shorter than reflected on the plat. Sonic Industries had a minimum width requirement for the width of their sites and since the property was only about 105' wide, they backed out.
The investor(s) in the property sued everyone that had ever even walked by and glanced at the property because "someone screwed up and they lost the Sonic deal."
The boundary location wasn't really the issue, they were trying to prove damages because a property was publicly reported to be one size, and in reality was a different size. (BTW - their suit did not prevail)
How could you mediate that sort of situation?
It could work..
> The boundary location wasn't really the issue, they were trying to prove damages because a property was publicly reported to be one size, and in reality was a different size. (BTW - their suit did not prevail)
>
> How could you mediate that sort of situation?
That particular lawsuit doesn't really sound like one to be submitted to a surveyor-arbitrator since the issues don't sound like surveying issues unless the facts surrounding the actual length of the block and the history of the faulty original plat are at issue. In that case, having a surveyor-arbitrator make a report of the facts might still be useful. The attorneys could move on to other areas of the dispute that don't touch surveying and it would still be something that could be settled out of court through existing mediation processes.
Not really a novel idea at all, Kent. Cooley recommended it in the 1870's. The TX GLO surveyors recommended it as well (in fact they required surveyors to do it). But it's good to see you have an epiphany every now and then. Mine happened several years ago.
Anyone interested in Mediation really needs to take the 40-hour training program (some states are less) to learn what mediation is all about. You don't have to be an expert to be a mediator, but you will likely have to dramatically change your thought process from surveyor to mediator.
Mediators don't offer solutions; the mediator's skill is in keeping the parties at the negotiation table until they come up with a solution on their own. Yes, it certainly helps to be a surveyor that can understand the issues being argued and can offer information so the parties can enter an intelligent and knowledgeable decision. The surveyor also has the skills to produce the documentation necessary to resolve the matter in accordance with the parties' agreement.
I've been involved in mediation for well over 10 years now and find that it works incredibly well. It keeps you at the table when and where the decisions are made to repair the problem. In my opinion, no one knows better than a surveyor how to properly document the solutions.
There are a few states who have arbitration statutes which are available to parties though either panels of surveyors chosen by both sides or through court-appointed arbitrators. Surveyors really need to learn about the mediation/arbitration processes so they can best serve their clients and the general public.
Great epiphany, Kent. Wish I'd thought of it. If you'd like to learn more about it, I have two four-hour presentations that I make including a mock mediation where the surveyor plays the role of the mediator. I'd be pleased to get an invitation to TX (or any other state) to make a presentation.
JBS
Kent, regarding dishonesty and money involved, I wasn't talking about survey expert money or dishonesty of the arbitrator. I was talking about dishonesty of some experts.
Once cases get into litigation and reach the mediation or arbitration phase they become all about money.
I agree with JB that mediation is the best method to resolve a boundary dispute. But, like JB said, the mediator is just a person who heads of the proceedings and tries to make the setting favorable to reaching a settlement. The opposing parties generally don't even sit in the same room. They send messages back and forth to each other via the mediator.
In arbitration, the two parties are at the mercy of the arbitrator, who decides the case like a judge, and it is normally final and not subject to appeal. If you have been in many of those you will find that the often fall sort of in the middle, splitting the baby, and they are not subject to review and scrutiny by a higher court.
I recently completed an arbitration, serving as an expert, and the arbitrator simply ignored a crucial, basic engineering principle and refused to explain why. And it is over--no ability to appeal in arbitration. I have not seen any legal fee savings in the process of arbitration, but I have seen big savings in mediation.
Here is an example of a typical issue using an arbitrator. Assume that each side was to turn in all of their evidence 20 days before the date of arbitration and to share all data and evidence with both parties. Assume that one party held back more than 50% of the evidence, and one day before arbitration, the hiding and non-compliance was discovered by the other party. This was an actual case, and the arbitrator let the late evidence in. Not appealable. If a surveyor is trying to serve as the arbitrator, what would he do when an administrative court issue like this comes up? I imagine you or I would say that it could not be introduced into evidence because they did not comply with the 20-day rule. But what if the evidence was a huge discovery that would make it an obvious solution to the case--like a slam dunk to the real solution...What would you do? That is an example of where it can and will get hairy.
One of the most experienced land survey experts in Louisiana told me more than once that it is not about the truth--it is about winning. I certainly disagree with that very strongly, and told him so. But I imagine I didn't change his line of thinking any at all.
About 20 years ago while I was working for a large timber company, two local surveyors were in disagreement. They were both good friends and I considered each to be a good surveyor. They asked me and two other disinterested surveyors to "hear" their case rather than going to court. Both clients agreed to accept our decision.
We rendered an opinion and all parties abided by our decision.
> The TX GLO surveyors recommended it as well (in fact they required surveyors to do it).
Could you give the rest of us a clue what you have in mind, particularly considering there were no Texas GLO surveyors? :>
> Mediators don't offer solutions; the mediator's skill is in keeping the parties at the negotiation table until they come up with a solution on their own.
I realize that I mixed the terms mediator and arbitrator. What I mostly have in mind is a surveyor-arbitrator as opposed to the baby splitting of traditional mediation which I'm fairly familiar with. The surveyor-arbitrator would end up mediating between the two or more surveyors with conflicting views, of course, but the main object would for the third surveyor to reach a decision that would bind the parties on the surveying issues presented.
> If you'd like to learn more about it, I have two four-hour presentations that I make including a mock mediation where the surveyor plays the role of the mediator.
No, I'm actually quite unimpressed by the mediation process as an exercise in anything other than baby splitting or figuring out what the parties to a lawsuit really want that is typically quite removed from the technical issues present.
> Once cases get into litigation and reach the mediation or arbitration phase they become all about money.
I think I'd say that it's the money costs of pursuing the lawsuit (and the very real risk of losing and having to foot the entire bill) that has driven the mediations I'm familiar with. The parties just get tired of shoveling cash into their attorney's bank accounts and are amenable to a face-saving solution.
> I agree with JB that mediation is the best method to resolve a boundary dispute.
I'd say that mediation is a good way to resolve a boundary dispute when the dispute isn't about actual surveying issues but where the technical issues are merely a vehicle for some other agenda that drives the conflict between the parties.
> But, like JB said, the mediator is just a person who heads of the proceedings and tries to make the setting favorable to reaching a settlement. The opposing parties generally don't even sit in the same room. They send messages back and forth to each other via the mediator.
Yes, I've sat in on several mediations. The surveyor-arbitrator would end up mediating between the two or more surveyors whose findings conflicted with each other, but the basic activity would be arbitration.
> In arbitration, the two parties are at the mercy of the arbitrator, who decides the case like a judge, and it is normally final and not subject to appeal.
My opinion is that possibly a better way would be to provide for the arbitrator to submit his report to the court in the matter and leave it up to the judge's discretion whether it would be grossly unjust to accept it or not, although the strong presumption would be that it would be correct to accept it.
> I recently completed an arbitration, serving as an expert, and the arbitrator simply ignored a crucial, basic engineering principle and refused to explain why.
It sounds as if the arbitrator was not properly qualified to act in that role. Certainly the key for the system to work would be that the arbitrator is carefully chosen. I suspect that there are relatively few surveyors who would meet the criteria necessary in an arbitrator of surveying issues.
> Here is an example of a typical issue using an arbitrator. Assume that each side was to turn in all of their evidence 20 days before the date of arbitration and to share all data and evidence with both parties. Assume that one party held back more than 50% of the evidence, and one day before arbitration, the hiding and non-compliance was discovered by the other party.
As I envision it, the survey arbitration process wouldn't be a one day affair. Both parties would submit their evidence in writing and both sides would have a chance to examine it. The arbitrator might ask questions that required some response, also written, and would produce a report of some sort either setting out his views as to the correct decision of the main points in contention or explaining why he thought the sum of the evidence produced by both parties was inadequate to the task.
Good to hear that it happens. Sounds like you had two rational clients! 🙂
That is FUNNNNNNNNNNNNYYYYYY.
