Replies

1. 
   MikeSmith | Sep 01, 2008 04:08am | #1

   we have a mandatory Arbitration clause

   Mike Hussein Smith Rhode Island : Design / Build / Repair / Restore
1. 
   jimblodgett | Sep 01, 2008 04:37am | #2

   "mandatory arbitration" I've been to arbitration, Mike.  Years ago as a customer.  I understand that process.  How is yours paid for?  Are you BBB? 

1. 
   MikeSmith | Sep 01, 2008 04:54am | #3

   i use a clause from the American Arbitration Association

   i think both parties have to split the initial feeMike Hussein Smith Rhode Island : Design / Build / Repair / Restore

1. 
   caseyr | Sep 01, 2008 07:30am | #7

   I believe in Oregon if you go to small claims court, you first have to go through a mediation service. I was told the fee for that was $300, but I don't know if that is each or both. Do you ever write in the contract a try at mediation, or is it straight to arbitration?

1. 
   jimblodgett | Sep 01, 2008 07:58am | #8

   Hey Casey - How's life? Like old home week tonight.  I just ran into kcoyner in another thread.

   Not to speak for others, but the clause(s) David just sent me outlines a process that starts with mediation, then to arbitration, finally to (a specific Superior) court.

   I'm going to try to get a couple sentences in my contracts leading to binding arbitration - but I won't be surprised to learn that is far too simplistic to work.  

2. 
   MikeSmith | Sep 01, 2008 10:24pm | #9

   jim.. the way ours works..

   it is administered be the AAA..

    there  is no mediation  ... any time you have to go to arbitration  I'm assuming it is the  FINAL step....

    

   i've done every thing i could to  arrive at a good conclusion

   and  BINDING arbitration  means there is no COURT  the Arbitrator's ruling is final

    

   so...  one has to have  a good case to  agree to  arbitration

    you may lose

    

    you may win ... or he might decide to split the baby

   but it is fast  ( maybe a month or two )

   if you are in the right,  you will get  a fair shake

   you don't need a lawyer  (but i think either party csan  choose to have one )

    

   i'll see if i can dig up the AAA site

   http://www.adr.org/about_aaa

   <<<<<

   About American Arbitration Association

   In conjunction with its administrative services, the American Arbitration Association provides time- and court-tested rules and procedures. When a clause referring to AAA rules is included in an agreement, either party may file a request for arbitration or mediation with the AAA in the event of a dispute. Parties also may file a case without the presence of an arbitration or mediation clause once there is mutual consent to do so.

   Administration of a case begins when a case is filed with the AAA. Parties involved in certain types of disputes may file their cases via the Internet through the AAA's proprietary, easy-to-use online system known as AAAWebFile SM . Alternatively, cases may be filed through the AAA's offices nationwide, including any of the organization's Case Management Centers throughout the U.S., which are staffed by professional case managers.

   Once a case is filed, parties may select from the AAA's National Roster of over 8,000 impartial experts, or "neutrals," to hear and resolve their cases. Recognized for their standing and expertise in their fields, neutrals, who are attorneys as well as non-attorneys, are nominated to the National Roster by leaders in their industry or profession. The collective expertise of AAA neutrals' is wide-ranging--all have at least a decade of industry specific expertise in such areas as construction, employment, healthcare, real estate, technology and many others.

   The conduct of AAA arbitrators is regulated by codes of ethics that have been jointly developed with organizations including the American Bar Association (ABA) and the National Academy of Arbitrators; mediators must comply with model standards of conduct jointly developed by the AAA, the ABA and the National Association for Conflict Resolution.

   The AAA is a not-for-profit-organization with offices throughout the U.S. and in Dublin, Ireland. The AAA headquarters is in New York, New York. >>>>>Mike Hussein Smith Rhode Island : Design / Build / Repair / Restore

3. 
   MikeSmith | Sep 01, 2008 10:43pm | #10

   the thing i like about arbitration is that it levels the field.....

   most of my customers have more resorces than i do... if  one chooses to take me to court....  they are almost guaranteed to win... because they can work the system.. they can hire more expensive lawyers... they can outlast me... they can appeal..

    

   with arbitration... it doesn't matter if they are a $200 / hr lawyer trying to beat me down..

    they can only present their side of the story... they can  introduce expert witnesses... but so what ?..

   i'm as much an expert as most

    

   as long as i have done what i'm supposed to do under the contract ... i have little to worry about

   in 32 years in business.. i went to arbitration once.... and they split the baby

   if the customer had been reasonable... i would have corrected the problem... but he had a laundry list... so i chose arbitration

    i lost on the  one thing... and he lost on the 20 other things on his list

   i wound up with half my final payment, a better appreciation for how jobs can go south, and a better early warning system for screening customers i couldn't satisfyMike Hussein Smith Rhode Island : Design / Build / Repair / Restore

4. 
   jimblodgett | Sep 02, 2008 12:03am | #11

   Yeah, like I said, I entered into arbitration 20 some years ago as the customer and thought the process was extremely clear, fair, and straight forward. 

   Thanks for posting that info, too.  Brother Google led me to their site last night and I did in fact add a clause to my two standard contracts (freakin' things are pushing three full pages these days).

   Now I have to set to work on that preconstruction services contract... 

5. 
   davidmeiland | Sep 02, 2008 12:49am | #12

   Three pages?? Mine is eight. Should I use a smaller font?!

6. 
   MikeSmith | Sep 02, 2008 12:53am | #13

   mine is usually one...

   sometimes  a separate  payment schedule....

   sometimes separate specs

   but the basic boilerplate is all on one pageMike Hussein Smith Rhode Island : Design / Build / Repair / Restore

7. 
   sledgehammer | Sep 02, 2008 02:57am | #14

   If you have gotten so far on a job you need arbitration or a dispute clause .... You missed alot of signs along the way.

    

   FWIW you'd be better off having a Kolbe testing clause before a contract is ever signed. All customers are not created equally and it's one heck of an advantage knowing what you are dealing with going in.

8. 
   EricPaulson | Sep 02, 2008 03:03am | #15

   I'm thinking that the clients may want to use that test on their contractors![email protected]

    

    

    

    

9. 
   jimblodgett | Sep 02, 2008 04:18am | #16

   Yes, I agree.  Not a pleasant thought, that I'd ever need to implement that clause.  Hopefully I won't.

   Came back to ask - what's a "Kolbe" test?

    

   Edited 9/1/2008 9:19 pm ET by jimblodgett

10. 
    MikeSmith | Sep 02, 2008 05:03am | #17

    well, sledge , lemme just say that that clause has often made people reconsider what is "reasonable"   and what isn't

     

    kolbe or no.....

    when they call their lawyer and he/she explains what "binding arbitration" entailsMike Hussein Smith Rhode Island : Design / Build / Repair / Restore

11. 
    caseyr | Sep 02, 2008 06:15am | #18

    I know nothing about the American Arbitration Foundation - hopefully, they are an impartial organization. However, from what I read, you don't want your credit card company to take you to arbitration using the National Arbitration Forum, which is written into many credit card contracts. I have read several articles on how the credit card companies almost never loose using their arbitration procedures. There was an article that said that the credit card companies in California won 99.8% of their cases against card holders when things went to arbitration.However, maybe if you had the National Arbitration on your side and had them written into your contract... 99.8% ain't bad odds....An article from Newsweek at: http://www.hobb.org/content/view/2633/1/

2. 
   davidmeiland | Sep 01, 2008 05:24am | #5

   Jim, I have mandatory mediation/arbitration. I tried to email you that section but it bounced.

   Only dispute I have had in years was minor. I was quite sure a guy owed me about $2500, he wasn't so sure. Turns out that because of my clause I could not file a small claim, so instead I sent him a letter stating that I would like to proceed to mediation and that we would have to split the fee. He sent me the money.

1. 
   jimblodgett | Sep 01, 2008 05:58am | #6

   (and Mike, and Neil) - So let's say I write that into my contract and we do indeed "go to arbitration". 

   How does it occur?  How would I/we get a case heard by an arbiter?

   David - our new e mail address is [email protected] I'd love to see your text if you're still willing to share it.  

2. 
   CAGIV | Sep 01, 2008 05:22am | #4

   I don't have the verbiage committed to memory but ours calls out for Binding Arbitration where the parties agree to split the cost of arbitration equally regardless of outcome.