Mediation

Tonight I attended the Selectmen’s meeting and during the public question/comment period, I got up to ask who decides whether or not the town participates in arbitration.  The answer that I got was that the Selectmen do.

I said that WP had stated in numerous filings that they had requested arbitration and that while the town had not refused, they had not agreed to it either.  The Selectmen responded that they had not had any requests for arbitration.

That is apparently correct.  The filings reference mediation, not arbitration.  Here’s a link to a pretty good description of the differences: http://www.umbaugh.com/mediation-vs-arbitration

Here’s the bullet:

One of the most important differences between mediation and arbitration is that an arbitrator makes a final decision on a case, while a mediator does not. During the arbitration proceeding, an arbitrator listens to and considers all relevant information, then decides which party should win.  Essentially, the arbitrator acts as the judge and jury.  In contrast, a mediator doesn’t impose a final resolution on the disputing parties.  The mediator acts as a middleman who facilitates discussions for possible settlements or resolutions and encourages the disputing parties to arrive at their own decision.

My bad. I have used the terms mediation and arbitration interchangeably, and will be more careful going forward.  I also intend to make sure the newspaper is aware of this mistake.

In following up with the Selectmen I tried to make the point that we are cruising past the million dollar mark in this lawsuit and it would be nice to have a neutral third party review the case (mediate) and give us a fresh, disinterested opinion of the merits and possible outcomes.   The Selectmen assured me that the lawsuit is going “nicely” and that they have numerous opinions that the case is solid.

In fact, that’s what struck me as I listened to their response.  It seems to me that several of them are emotionally invested in this lawsuit and very defensive.  Regardless of how it is going, there is now no way out.  The train has left the station and it’s burning fuel at the rate of half-million a year.  And that was my original point back in March.

Dave Ford appears to be frustrated by WPs tactics.  He says they are delaying the suit and misrepresenting the facts.  What a surprise!  I wonder what they expected would happen.

—–Original Message—–
From: Dave Owen
Sent: Wednesday, February 06, 2013 10:00 AM
To: ‘Bob Lemaire’
Cc: chuck storm; ‘Dave Bowers’; David Senecal; Linda Murray;
Sarah Silk
Subject: RE: RTKBob:  To this date, $192,957.58 has been expended from the sewer fund in
legal and related costs in the litigation with Wright Pierce Engineers.  I
believe that we stated last evening that about $200,000 has been spent to
date, so that was a reasonably accurate estimate.  The proposed 2013
operating budget contains a line item in the sewer fund of $500,000 in legal
costs to see this litigation through to its conclusion.   I believe that was
also presented in one of the slides that the Budget Committee used last
evening, but they went through it very quickly and you might have missed it.
 

The underline was added by me.

So a year ago the town thought half-million would do it. Now we have a budget item this year for another half-million.  We’re still in discovery, haven’t even made it into depositions, of which there are dozens.  Spent half of this year arguing about amending the complaint and parsing emails for snippets of culpability. The trial was originally scheduled for last September.  Now it’s scheduled for February and there’s a motion to move it to April.  That doesn’t fit my definition of going “nicely”.

I’m not saying the suit doesn’t have merit – I really have no idea.  I’ve seen some obvious BS from both sides in the filings.  I’m not saying that the town doesn’t continue to have a serious problem with waste water disposal – we do.

What I’m saying is that lawsuits don’t always end up the way you expect.  In fact, almost by definition they end up differently than at least one party expected.  That doesn’t apply to the lawyers.  They always win.  The lawyers have no incentive to shut this down. Mediation is one way to get a fresh perspective.  It’s confidential and non-binding.  What do we have to lose? Maybe WP really hasn’t asked for it.  Why haven’t we?

Maybe we stand to get ten million in a few years.  Might happen, might not.  What is becoming clear is that it’s going to cost a lot to find out.  I hope I’m dead wrong.

The impression that I got tonight was that some of the Selectmen don’t feel I have a right to ask about this lawsuit.  It’s none of my business.  What do you think?

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One Response to Mediation

  1. Dick Mosher says:

    What do I think? I think that we need more peole that will question the selectmen, even if they are not willing to run for office. You are doing the town a great service.

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