Online Dispute Resolution - ODR

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Online Disputes Prevention & Resolution

“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”

– Justice Sandra Day O’Connor

Disclaimer: Construction Management Institute is an Advisory - Consultancy Firm with the Capacity and Legal Authority to Conduct Mediation Services. We make no representation that our staff or our professionals are Practicing Attorneys, Licensed to Practice under the Rules of Professional Regulation. Where any mediation proceeding may require Arbitration or a referral to Litigation - we can and will make suggestions and recommendations for our clients to seek that service in accordance to the rules of professional conduct in the appropriate jurisdiction.

     In the construction and building industry, disputes are common place. Dispute resolution actually begins before and during the contract negotiations and execution. The best approach to a successful business transaction is to prevent and avoid disputes in the first place. CMI has been advising construction, building and engineering firms since 2001. Its President has been engaged as a practitioner, principle party to approximately $4-billion in construction and engineering contracting project over 40-years. Our testimonials are indicative of what we have done over that time to advise our clients on how to develop new business, gather and implement the resources necessary to accomplish the work, and finally - how to get paid (preferably in full).

     The challenges to small bushiness today are exacerbated by the mobility of construction services, due to the proliferation of Construction Management as a construction delivery method. Projects used to be more locally centric and functioned in a small region such as within a State. Today, Construction management firms operate nationally and draw upon subcontractor, vendor, supplier and other professional services across state lines, into different jurisdictions and even time zones. With the advent of internet accessibility, now projects are rapidly advancing throughout international circles. This mobility requires a reliable, time sensitive manner of dispute resolution that is cost effective, time efficient and predictable in outcome - to the best of any party's expectation. Mediation is that process.

     Our online service draws upon a vast history, bringing a unique perspective of each aspect of a project to the table. Every phase of construction has been performed hands-on by our team – so we know what works and what does not work. We also have a unique understanding of what it takes to get the work done, after the drawings and the contracts are finalized. This allows us to integrate design with performance and theory with practice. We review the potential causes and administrative costs to resolve matters that can lead to costly disputes. We recommend preventive procedures for avoiding claims, and investigate alternatives for early, equitable settlement of claims, if they have gotten that far. 

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Online Dispute Resolution Services:

      Mediation is a more informal process for resolving disputes. It is similar to arbitration in that both mediation and arbitration are forms of Online Dispute Resolution (ODR) practices intended to help parties to avoid the high cost and unpredictable outcome that may result from a traditional lawsuit. Both mediation and arbitration are private forms of dispute resolution. Unlike a court case, they are not a matter of public record, and where confidentiality is desired; both processes can afford that privacy.  Mediation and arbitration also allow the parties to establish certain ground rules for resolving their dispute.

     Arbitration is a more formal process for resolving disputes. Arbitration will follow formal rules of procedure and the arbitrator will often be a practicing attorney with extensive background in litigation as an attorney with extensive legal training and the ability to practice law in multiple jurisdictions. Unlike a mediator, the arbitrator has the authority to make determinations and decisions that are binding on the parties. The arbitrator's job is to listen to both sides and then; The Arbitrator renders a decision that is legally binding on both parties. A disadvantage of Arbitration is that when a decision is made by the Arbitrator, that decision may leave neither party satisfied with the result. 

     Our services provide for mediation where we act as a neutral third party who helps the parties negotiate their own crafted resolution to their dispute. In mediation the parties are responsible for coming to an agreement; it is not the mediator's obligation, nor is it the mediator's task, to make or impose any decisions on the parties. The mediator listens to both sides and offers suggestions that are supposed to help the parties come to a resolution. The advantage to mediation is that, since both parties have willingly agreed to participate in resolving the dispute, they are more likely to carry out the settlement they agreed upon. It is only after the mediation process has been utilized, and should the parties fail to resolve their dispute, only then would the dispute rise to the level of arbitration or traditional litigation.

     The primary advantage in mediation is the avoidance of cost, unpredictability and lost time in relying on arbitration or litigation. Mediation provides a greater degree of predictability in the outcome. A resolution to a dispute is often built upon mutually beneficial goals and accommodations. The settlement may not follow judicially recognized precedent but the agreement is private and the parties will have crafted the terms and conditions for their benefit.

     On a construction project, delays, design disputes, performance and payment issues are the common threat to the parties. The work typically must continue while any dispute is being solved. When the parties can reach a timely, cost effective consensus on any dispute, they may save the project and the relationships that may be necessary to assure repeat business in the future.

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Online Mediation as a Choice for Dispute Resolution    

Some of the biggest benefits to employing mediation rather than traditional litigation or arbitration are:

  • Global Reach - 24/7/365 Accessibility 
  • Reduced cost
  • Much less time-consuming than litigation and arbitration
  • Maintaining your business relationships
  • Not dependent on unpredictable juries, and
  • Reaching a mutually-beneficial agreement.

Accessing and Using the ODR Platform

     Our ODR services will informally commence when a client or an interested party first contacts us through our website and by sending a request to us for a FREE and informal consultation. We will connect with the requesting party to discuss in general terms what the issues are and what the desired solutions might be. At this stage we may be able to determine if the opposing party is also inclined to join into a mediation process. If these are affirmative then we will send preliminary documentation and questionnaires to the parties for them to fill out and execute.

     We will discuss and then decide upon the videoconferencing platform that will be utilized during the ODR process. In advance of a scheduled online mediation, the parties will receive electronic instructions inviting them as to when and how to "join" the mediation. The parties may request that their individual attorneys be so invited. Prior to any scheduled meeting we will contact the patties to ascertain their ability to connect and to understand the online process and the platform so when the actual scheduled time approaches there will be no interruptions or delays. Once the scheduled meeting arrives and all parties are online, the mediator will welcome all parties by audio, video, or both, and your mediation is underway.

     The mediator can talk with the parties in a shared "room," where the parties have the opportunity to greet each other in joint session. At that time, the mediator will explain the mediation process and answer any questions. The ODR mediation procedure will be fully explained again at this point and the mediator will seek mutual agreement by the parties to abide by the procedure's terms or guidelines. Here will be the appropriate opportunity for the parties to exchange their opening statements.

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Features Offered in Online Dispute Resolution Service
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      We intend to be powered by CourtCall,®  (or equal) We are an ODR browser-based video and audio application that offers parties an efficient mediation alternative to the traditional, in-person mediation session. Our ODR mediation is ideal for low to moderate value claims that can typically be resolved in a two-hour session.

     We offer clients the exceptional services - relying on almost 50-years of combined expertise. 

  • Experienced neutrals exclusive to Construction Industry
  • World-class case management
  • Flat fees not exceeding $500 per party for two hours and up to two participants per party
  • Elimination of travel time and expenses
  • Flexible scheduling 
  • Two-day cancellation policy
  • Convenient payment via credit card or payment on account (for qualified parties)

     Our ODR platform requires only a phone and a desktop or laptop computer with a webcam. Features include:

  • Real-time streaming video
  • Virtual caucus rooms for private conversations with the mediator
  • Online chat functionality
  • Document sharing 
  • Electronic signature capability
  • Operator support for a seamless experience
Clientele Most Likely to Benefit from ODR Services

     According to the Bureau of Labor Statistics, about 20 percent of small businesses with employees fail in the first year. The business failure rate varies depending on the industry. Only 15 percent of businesses in the health care and social assistance industries fail in the first year. And 25 percent of businesses in the construction and transportation industries fail in the first year, according to the Bureau of Labor StatisticsThe construction industry is expected to grow 13 percent but its business failure rate is a whopping 25 percent. The transportation industry suffers the same failure rate. In both industries, 35 percent fail in their second year and 60 percent fail by their fifth year.

     Within an industry that is one of the most likely industry type business to fail, this is the same group of clients that are most likely more dependent upon assistance to be saved and to be afforded an opportunity to revive their business if trouble looms. Those with the most to lose are also the same who are most benefited by help. We intend to provide that help
Typical Types of Disputes Likely to be Resolved with ODR

The 4 Most Common Root Causes of Construction Disputes
     1. Quality of construction. Quality of construction is extremely important for a number of reasons. ...
     2Construction project delays. Construction delays are arguably the biggest stressor on jobsites for owners, GCs, and subs. ...
     3.  Nonpayment. - Financial Burdens...
     4.  Workplace or Jobsite Injuries or Damages to Persons and Property

The Most Common Issues leading to Construction Disputes – And How to Remedy Them
    1. Contract Issues. ...
    2. Too Many Bosses  - Lack of Clarity and Control. ..
    3. Lack of Transparency on Changing Conditions. ...
    4. Poor Management of Communications. ...
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What Differentiates our ODR Services from Other Offered Services Online

     There are a wide range of alternative Online Dispute Resolution sites available (e.g.. eBay Res  Center,  Mondria, SmartSettle, VirtualCourtHouse, or CyberSettle. Many have automated, non-personal hands-on or face-to-face interaction. We are not operating in that realm of service. We only intend to provide face-to-face services to construction industry professionals. We will not entertain clientele outside of the core industry expertise of our Mediators, Legal Professionals and staff. 

     Our industry experienced staff has a combined 210 years of real time, on-site, hands-on construction experience encompassing every trade specialty, every aspect of the construction process from concept/design to turn-key of over $4-billion in construction project including retail, commercial, industrial, educational, hospitality, medical facilities, social housing and diaster relief projects on a global scale. If is was conceived, drawn, built or otherwise acted upon - we are able to do every facit of that work. We have been expert witness in litigation, we review contracts and provide executive project and program management on project in domestic and international jurisdictions. When we enter upon the stand in a court room, we are in complete control our facts and we are always prepared. We have never lost a case that we were involve in. Our team has provided protracted consultation to lawyers so they can understand the construction process and devise a method of winning their case. 

     That advocacy, enthusiasm, expertise and performance bodes well for our clients. We will not dictate nor suggest or sway any client decision on any matter under dispute - however we can provide them with better advice than even a seasoned lawyer - absent hard construction knowledge. If you are in an airplane and it is going down, which would you rather to be sitting in the cockpit, the pilot who has only trained on a flight simulator, or the pilot with 20,000 hours behind the yoke, who also already knows how to land a plane that is in distress?

How do we Charge for Our Services - What is the Traditional Fee Structure

     There are two fundamental revenue or income streams that our overall site and services provide to clientele: 1.) Advisory - Consulting Services, and 2.) Online Dispute Resolution Services ODR.

     Our advisory services are offered on an annualized, membership basis, where a typical annual subscription fee might average between $750.00 to $950.00 and may be paid on an annual, quarterly or monthly basis. This service opens the clientele portal to virtually unlimited contacts, emails and chat discussions. During these meetings or discussions we may decide to take on individualized, specific projects that will be agreed upon and a subsequent fee attached to that project.

     Our ODR services will be negotiated in advance of the mediation session taking place. This fee may be predicated on: 1.) the size and scope of the project under consideration, 2.) the type and size of the parties in the dispute, and the 3.) amount in controversy. We expect to only accept disputes that have a controversy under $75,000 as we believe the larger the controversy, the more highly articulated the process must be to resolve the dispute and the more likely that a dispute over that level of controversy would be better resolved with binding finality - of which we cannot provide under mediation. 

     All payments may be made by online credit card processing systems, or the client may wish to pay for the services by traditional bank draft methods. If payment is made by bank draft then the mediation session will be scheduled for a time after all funds have cleared the banking institutions involved. For many of our clients, over the years, we have been paid both in cas or in-kind as a barter. There have been times where a client was not able to pay an invoice butt that client knew we were building an addition to our facility and needed windows and doors. They send us a delivery of some left over inventory and a Home Depot card for the balance. 

     An average ODR fee may approximate $350.00 to $500.00 (per Party) depending on the complexity of the dispute and the willingness of the parties to get into the process in a meaningful fashion consistent with a speedy resolution. A 1 - 2 hour session is estimated to cost $350.00 and a session that may last up to 4-hours will be maximized at $500.00 on a Flat Fee.
How We Reach our Market Audience and Clientele

     We have been fully engaged in the construction industry advisory and consulting business for over 20-years. Prior to the initiation of our Advisory Consulting business we have been principally engaged in construction and development since 1974, with  a personal industry background reaching  47-years. We have a current clientele base of over 250 companies that extends from Florida to Maine. Across the US we are generally engaged in one way or another with an additional 200 prime clientele types. Our LinkedIn contact base is in excess of 2,400 construction industry targeted firms. We have over 5,000 contacts on LinkedIn and belong to approximately 20 construction, engineering, design, architectural and professional groups. We publish a blog letter, submit regularly posted articles on construction matters and actively engage in dialogue with industry professionals. We speak at international trade events, participate as expert contributors to trade publications, engineering journals and academic studies.

     In addition to the above, our website receives over 1,200 page views daily with a fair margin of those page views coming from distinct, new visitors. Our word of moth advertising is a natural draw for our business and that stream of inquiry has never subsided. In contrast , with construction activity on the rise, and our wider reach across the country and aboard, our base continues to grow.

     We do no client solicitation harvesting and would not contemplate that approach under any circumstances with regard to abiding by the Professional Rules of Conduct for legal professionals.  With over 47-years of business activity, we have come to know our fair share of attorneys as well. We keep in touch with them as much as possible and practice - and once this service is launched we will be contacting all of our associates to let them know of our service. Where we can mediate, we will offer that service. Where we would recommend our clients move up to arbitration, then we have our deep bench of law firms to recommend.

Why We Believe our ODR Services will be Successful

     The insatiable increase in construction activity and the accelerated expansion of construction services on the global stage, and with cyberspace being so much advanced and capable of providing technologies and security to the entire sector of construction, engineering, design, project management and every stage of construction the opportunities are almost limitless. The demand for ODR is driven by sheer increases in activity and the enormity of the financial burdens, responsibilities and risks.

     ODR provides significant advantages over traditional ADR and traditional litigation. They include low cost, flexibility, avoidance of jurisdiction and choice of law problems and above all speed. We offer flexibility in terms of payment and pricing. Our professionals are highly trained in the industry and deeply entrenched in law. We will be exclusively dedicated to construction and will refrain from other types of cases or controversies. We will not seek large clientele types who already have their own bank of law firms and legal advisors – and who may prefer the traditional litigation methods because they want finality and they want to win. Many large firms with significant risks at stake typically want to win at almost any cost – because in many cases the win is more about precedent and principle than money.

     Our pricing scheme is fair and equitable for clients and is in the desired realm of reasonable profitability for our firm. We will shy away from the large clients, the large controversies, and the added risk inherent in the types of settlements we would have to be involved in to work in that arena. The bigger the income reward potential, the greater the competition, the lower the margins will have to be to compete – and the riskier it will be to succeed.

     We are not in that arena and will be successful, mostly driven by proven successes. Overall with many new entrants into the ODR arena, there will also be failures. The type of competitiveness that permeates that level of business will lead to cannibalization of the service and only the reasonable, time tested firms will survive. We will keep the lights on for you.

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Disclaimer: Construction Management Institute is an Advisory - Consultancy Firm with the Capacity and Legal Authority to Conduct Mediation Services. We make no representation that our staff or our professionals are Practicing Attorneys, Licensed to Practice under the Rules of Professional Regulation. Where any mediation proceeding may require Arbitration or a referral to Litigation - we can and will make suggestions and recommendations for our clients to seek that service in accordance to the rules of professional conduct in the appropriate jurisdiction.