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About Mediation Services
Background
Mediation Style
Conflicts
Compensation
Location
Scheduling
Settlement
Interest Statements
About Steve Nelson
References
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This information is provided to
those who are looking for information to aid in the selection of a mediator,
and those who are considering utilizing the services of
SureTec's primary Dispute Resolution
Professional, Steve Nelson (Click here for
Mediation Bio). The information on locale, position statements
and fees is general and may vary by case. Please contact
Steve Nelson if you have any questions.
Background
of Steve Nelson, Construction Industry Mediator
I practiced law in Dallas, Texas for nineteen
years, most of those at Winstead Sechrest & Minick, P.C.,
where I headed up their construction practice. In 1995, I became the CEO of
Faulkner Construction Company, a large construction firm headquartered in
Austin. While I was CEO of that company, I was part of executive
management and General Counsel for sister
companies involved in real estate development and the mechanical, stone &
tile, road & bridge, and concrete pumping businesses. In 2001, I left
Faulkner to join a long-time friend and client in establishing SureTec
Insurance Company, a regional surety company and SureTec Information
Systems, Inc., a construction financial services and risk consulting
company. I enjoy mediating so much that we just worked it into our
business plan.
Click here for more
information on SureTec.
I have been licensed as an attorney in Texas
since 1976. I also hold licenses
as a Property and Casualty
Insurance Adjuster, Property and Casualty Agent,
and Managing General Agent.
I am a Fellow of the American College of
Construction Lawyers, and have previously chaired the Construction Law
Sections of the State Bar of Texas, the Dallas Bar Association, and the
Austin Bar Association. I also have
been active in lobbying the Texas Legislature for legislation in the
interests of the construction industry.
I have been mediating for
twenty five years. My initial
training was with the Dallas Bar Association, U.S. Arbitration & Mediation,
Inc, the American Arbitration Association, and the Advanced Mediator
Institute. More recently, I have taken advanced training from the
Association of Attorney-Mediators and the Center for Public Policy Dispute
Resolution at the University of Texas, where I am a Fellow and member of its
Advisory Council. I am a Certified Mediator by the Association of
Attorney-Mediators, a Credentialed Distinguished Mediator
under the Texas Mediator Credentialing Guidelines, and meet all
requirements for Texas court annexed mediation. I am an Adjunct
Faculty member and teach a graduate level course at the University of Texas
School of Civil Engineering on “Construction Industry Dispute Resolution &
Avoidance.”
I have mediated over
400 construction cases. Most were multi-party, and
about half involved a public owner or public project of some sort. About
half were done before any litigation or arbitration had been commenced, and
about half were done during some stage of the litigation process. Over
90% of the cases have settled at mediation; something I attribute more to
the quality and professionalism of the advocates and the wisdom of
construction industry businesspeople than I do to my own skill.
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My Mediation Style
If you were to dig into the literature
available on the subject of mediation, you would find that some
practitioners try to label mediation styles and processes as either “facilitative”
or “evaluative.” All mediators, regardless of style, must remain
impartial and neutral, but mediators adopt different approaches, methods,
and styles to “facilitate” a resolution. While I will resist any
definite label being applied to my approach to this process, I have found
that a more evaluative process tends to produce better results in the
resolution of construction disputes. To be effective with that style,
I have found that there are several things I do that differ from those that
a mediator handling a personal injury or family matter might do:
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My own review of underlying contracts, reports,
deposition testimony and relevant, in addition to the advocates’ position
papers, increases my ability to be effective in what I do.
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Ex
parte communications between counsel, their clients, and me are
encouraged.
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Before the opening session, I
like to know the facts, positions, and settlement history of a
dispute. Too many opening sessions have further polarized the parties when
the mediator did not have the advance opportunity to counsel with the
parties about a planned “scorched earth” opening presentation or surprise.
More and more, I find it helpful to visit with the parties on large
matters in advance of the date set for mediation.
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I favor long
days over multiple days of mediation...one half
of every day after the first is spent undoing “buyer’s remorse” that set
in the night before.
While my style is more
evaluative and more into the details of the dispute, I am
not coercive or intrusive. I firmly believe that settlements must be
made by the parties themselves. I will not attempt to impose, coerce, or
force a settlement on the parties. I won't give up easily
either.
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Conflicts, Impartiality and Bias
I will disclose to you all relationships,
dealings, and prior contact with the parties, their counsel, and any
principals, witnesses, experts, consultants, insurers, sureties, etc. you
identify for me. If there is any relationship that precludes me from
serving in an impartial and neutral manner, I will decline the assignment.
If any of the disclosures raise questions that are not answered to your
satisfaction, please let me know and I will withdraw.
Between business dealings, bar
and trade association activities, and prior legal
and dispute resolution engagements, it is rare that I have not had dealings
with some of the counsel or parties in major construction disputes in Texas.
It is my hope that those dealings will not always be viewed as a
disqualifying factor, but as what they often prove to be
the basis for credibility that allows me to be more effective in the
mediation process.
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Compensation
As a general rule, I will spend as much or
more time in preparation, pre-mediation conferences, and review of the
underlying dispute as I do in the actual mediation session. Unless the
pre-mediation time is billed separately on an hourly basis, I find that the
most palatable compensation method is to recover all pre-mediation time in a
higher first or single day of mediation daily rate.
The mediation fee is based upon the number of parties. All parties
represented by the same attorney are considered to be one party for the
purposes of the mediation fee; otherwise each party will be charged a
separate fee (effective for mediations scheduled on or after 8/1/2007):
|
Parties |
Fee per Party |
| 2 |
$1,750.00 |
| 3 |
$1,500.00 |
| 4 |
$1,250.00 |
| 5 |
$1,100.00 |
| 6 |
$1,
000.00 |
| 7 |
$
900.00 |
| 8* |
$
800.00 |
* More than 8 Parties will usually require the mediator to determine a
reasonable fee
I usually send out statements to each party and ask that the fees and
estimated expenses be paid before we begin. Payments should be made to
SureTec Information Systems, Inc, whose Federal Taxpayer ID Number is
76-0587786.
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Location of the
Mediation Session
I prefer that we meet in my office or in the
offices of one of the counsel for the parties. Lawyer’s offices tend to have
the facilities and support to allow parties to conduct at least some other
business during down times. The availability of legal secretaries familiar
with the dispute to assist in documenting any agreement can also be a plus.
Where a neutral site is required, I will make the necessary arrangements. I
encourage the parties, however, to begin the settlement process by
considering the economies of using one of their own available office
facilities.
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Scheduling
This is probably the hardest part of most
mediations. I will do my best to accommodate your schedules. My assistant,
Sue Davis, keeps my calendar and can give you
tentative available dates. Her direct number is (512) 330-1851 and her email
address is
sdavis@suretec.com.
I prefer not to commit to a date until we know who all of the parties and
their counsel are, and something about the dispute. If you would like for us
to contact all parties about available dates, please furnish email
(preferred) or fax numbers and we will do so.
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Settlement
Agreements
This probably goes without saying, but good
practice requires that I advise the parties that they seek independent
counsel, that what I am doing is not the practice of law, and that I am not
giving legal advice when I ask questions or make suggestions in the course
of mediation. Often, I find that it helps if I take a stab at a draft
settlement document for use in the mediation process. I often ask the
parties to each send me a draft settlement agreement before we meet.
Whatever my role in the development of the initial text of such a document,
each of the parties is responsible for their own review of the document by
their chosen counsel. In the end, any settlement agreement is yours, not
mine.
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Position /
Interest Statements
I want to know about the case before the day
of mediation. Whether you want to do that with a phone call, letter, e-mail,
formal position statement, etc. is up to you. I will also read depositions,
expert reports, correspondence; pleadings, and anything that will help me
better understand the dispute. You do not need to exchange these with
the other parties. I will treat whatever you send as confidential. I
have no deadlines to impose. Just remember that I cannot absorb a box of
documents if you send them to me the night before
we meet.
While you do not need to exchange position
statements, you may find it helpful to exchange statements of your position.
That’s up to you.
Besides the background on the dispute, I
would like to see:
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Your description
of any settlement discussions that have taken place, including the history
of any offers and counter-offers.
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Your description
of what you think the other party’s position is.
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Any observations
your may have about who the decision makers(s) are for the other parties.
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Anything that
you think will help me help you settle the case.
About a week before we meet, I would like for
the parties to exchange a list of the persons who will be attending and
their role in the dispute. This is an opportunity not only to see if
we have enough room, but to flush out any problems with authority. If you
feel that the other party is not bringing someone with the requisite
authority, please call me to discuss.
I wish you every success in the resolution of
your dispute.
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For more information on SureTec's dispute
resolution and avoidance services, or to schedule a
mediation, please contact Steve Nelson at (512)
330-1850 or by e-mail at
snelson@suretec.com
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