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What’s Happening Now . . .
10.7% · Increase in construction spending, year-to-date. · The first 10 months of 2015 have seen $888.1 billion in construction spending. · The first 10 months of 2014 were $802.3 billion. Source: U.S. Census Bureau News, October 2015 Construction at $1,107.4 Billion Annual Rate, U.S. Dept. of Commerce (Dec. 1, 2015). |
Mediation, Arbitration, and Litigation
Construction contracts often reference either mediation, arbitration, or litigation. But what’s the difference between these three?
Mediation is the use of a third-party to conduct an informal meeting for the purpose of resolving the dispute. There is no judge or jury. It is merely a mechanism to get all the parties in the same room. Typically, but not always, the mediator is selected and hired by the parties to lead the settlement discussions. It’s also common for mediation conferences to start with all parties in a single room, discussing their grievances and desired outcomes. After the initial group discussion, it is common for each party to relocate to separate rooms, and the mediator will meet with each party individually, to facilitate points for discussion. Generally, a mediator is hoping to bring each party towards middle ground in search of a negotiated resolution. |
It is important to ensure that mediation is conducted under the confines of 42 Pa.C.S.A. § 5949. This statute provides that the communications made in mediation are inadmissible as evidence in a court of law. This protection allows the parties to speak freely, in an effort to resolve the dispute. Settlement discussions are also inadmissible in a court of law, under Pa.R.E. 408. Best practice is for all parties to agree in advance, as a ground-rule of mediation, as to whether the statements are fair game for use in court at a later point.
Mediation does not result in a binding decision. It is merely an attempt to facilitate a negotiated settlement. Arbitration, on the other hand, is a formal procedure that results in a binding decision. Arbitration does not use a judge or jury. Instead, an arbitrator presides over the arbitration and acts as the “judge and factfinder.” Arbitrators are usually practicing attorneys who likely have a concentration or level of expertise in the specific area of applicable law. Arbitration is less formal than a trial in court; it is often held in a private office, or a conference room. Although less formal than a trial, the litigants must still present testimony and evidence, in a similar manner as if presenting their case in court. Sometimes, people use the terms “binding” or “non-binding” arbitration. These are misnomers. By definition, all arbitration is binding. If it is “non-binding arbitration” then, it is better defined as mediation. When agreeing to participate in mediation or arbitration, make sure that it is fully understood and agreed that the process is either binding or non-binding. The best way to make this clear is to use the proper terms: mediation is a non-binding; arbitration results in a binding decision. This should be clarified in writing, between the parties, as a ground-rule for participating in the process. Litigation, in contrast, is the use of the court process. At the time of entering the contract, and at the time of any dispute arising, it is important to know whether the contract requires mediation, arbitration, or litigation. |
Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.
Employment Construction Business |
2306 Columbia Ave. | Lancaster, PA 17603
T: 717.291.2236 | www.h-dlaw.com
Unionville-Chadds Ford School District Sued for Age Discrimination
by HDlawblog Posted: Tuesday, 5/28/2013By way of disclaimer, I am a graduate of the Unionville-Chadds Ford School District, which in my biased opinion is an excellent public school. In fact, U.S. News and World Report ranks Unionville High School the 10th best public high school in Pennsylvania and the 507th best public high school in the nation, out of approximately 22,000 schools, which places it roughly in the top 2% of public schools. Yet, despite its prestige the Unionville-Chadds Ford School District was recently sued by one of its employees for alleged discrimination under the Age Discrimination in Employment Act (“ADEA”).
Summarily, a paraprofessional at the school in her late 50s alleged that she was disciplined for reprimanding students while a significantly younger 30 something-year-old employee who similarly reprimanded the same group of students was praised for her actions. Additionally, the employee alleged that the school’s principal (also a 30 something-year-old) made allegedly discriminatory comments about the employee having a “senior moment.”
The outcome of the case remains to be seen, but the school district suffered a loss earlier this month when the Eastern District of Pennsylvania denied its motion to dismiss becaues the court found that the employee plausibly alleged age discrimination. Interestingly, it appears that it was the employee who first used the term “senior moment” when explaining to the principal why she couldn’t remember something. When the principal, in turn, commented on the employee’s self-proclaimed senior moment, the employee complained that the principal’s statements were offensive and that he needed to be careful about commenting about a person’s mental capacity or ability. It’s a lesson how in the employment law context the saying “what’s good for the goose, is good for the gander” does not necessarily ring true. In other words, if an employee blames their age as the reason for their mistake, supervisors should be trained to steer clear of those traps.
Another challenge that the school district faces is overcoming what looks like disparate treatment of employees who disciplined students under allegedly similar circumstances. Here, the senior employee was disciplined for her actions while the 30 something-year-old employee was praised for taking allegedly similar action. If the only distinguishing factor was the age of the employee, this case might not go well for the school district. This is why employers need to administer discipline on a uniform basis.
As a member of the Unionville High School class of 2000, I wish my school district the best of luck in defending this case, but then again, we are talking about a school district where an Indian remains the high school mascot.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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