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WSPE eNews
A monthly publication from the Wisconsin Society of Professional Engineers
March 1, 2007 Edition
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Mediation as an Alternative Disputes Resolution Process - By Robert J. Kay |
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WSPE's President Corner |
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Professional Engineering: It’s Not
Just a Job, It’s a Profession Robb Peebles |
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2007 Discovery Conference Update |
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| The WSPE Waukesha Chapter is continuing to plan the 2007 Discovery Conference (DC) to be held on Thursday, April 19, 2007, at the Brookfield Sheraton. The DC will be followed by the Governor's New Product Awards. Please mark your calendars and save the date. You won't want to miss this year's program on "Engineering the Future!" We expect to have two keynote addresses and up to 8 breakout sessions with topics such as nanotechnology, environmental engineering, computer engineering, continuing education, engineering marketplace, ethics, materials science, biomedical engineering, Great Lakes water resources, and history of engineering in Milwaukee. We are in the process of securing speakers, so if you have specific ideas or if you have a topic you would like to present, please contact committee co-chairs Jim Buggs or Andy Petersen at James.Buggs@CH2M.com or apetersen@ruekert-mielke.com or by phone at 262-542-5733. We look forward to seeing you in April! James A. Buggs, P.E. |
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| The Governor’s New Product Awards Banquet |
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| For more than three decades, the Wisconsin Society of Professional Engineers (WSPE) GNPA competition has recognized Wisconsin’s leading manufacturers who have contributed to the state’s economic growth through the development, manufacturing and marketing of new and innovative products. As an entrant, companies compete to be named the 2007 GNPA winner in the mega, large, medium or small company employment categories. The four Best of State winners will compete in the 2008 National Society of Professional Engineers (NSPE) New Product Awards for national recognition. Wisconsin has won the top award eleven times since 1993. All entrants, WSPE members and guests are invited to attend the GNPA banquet, Thursday evening, April 19, 2007 at the Sheraton Milwaukee Brookfi eld. This years GNPA banquet will again be emceed by Mr. Tom Zalaski, WFRV-TV News Anchor, Green Bay, WI. An invitation to the Governor will be sent and we have been fortunate the last two years to have Secretary Mary P Burke, WI Dept. of Commerce as our keynote speaker. In addition to the awards program, Mr. Lauran Larson, P.E. – WSPE State MATHCOUNTS Coordinator will introduce our 2007 MATHCOUNTS state team and their coaches. The GNPA banquet is a fun, WSPE social event that you will not want to miss. Banquet details: Registration/WSPE & GNPA social hour (cash bar) 5 to 6:30pm. Welcome/Introductions/Dinner 6:30pm. Program 7:30pm. Awards Presentation 8:15pm. Acknowledgements/Banquet ends 9pm For additional information about the banquet, please contact: Dale R. Swenson, P.E. |
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2007 WSPE Membership Directory |
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| Back by popular demand! In July the Wisconsin Society of Professional Engineers is once again publishing a special edition of the 2007 WSPE Membership Directory. Please consider the value of listing your firm in the 2007 WSPE Membership Directory. For a low cost of just $295, your company listing will reach the Wisconsin Society of Professional Engineers members, engineering firms, city public works directors, state and federal agencies, libraries, engineering schools and advertisers. A Business Card listing is also available for $100. Advertise in both the directory listing and business card directory at a discounted rate of $335. To request a sign up form and/or to reserve your space in the 2007 Directory, please contact Don McMurray in the media services department today. He can be reached at dmcmurray@wspe.org or 414-908-4950 ext. 111. All forms must be received by May 31, 2007 to be included. A copy of the Directory will be mailed to you following publication date. Special display advertising rates also apply for those companies's wishing to increases their exposure to this distinguished group of professional engineers. Please contact Don if you would like to learn more about the display advertising rates. |
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New Construction Engineering Management Program |
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| Marquette University will be offering a new program
in Construction Engineering Management (CEM) in the 2008-09 academic
year. The new undergraduate program will be offered through the
Department of Civil and Environmental Engineering but it will have
a separate BS degree. |
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Mediation as an Alternative Disputes Resolution
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| In the past and as recent as the January issue of this publication, I have written about alternative disputes resolution processes, particularly arbitration. The arbitrator’s decision is binding and subject to court review under very limited circumstances as explained in my article of January, 2007. However, a non-binding process called mediation is also available. Mediation may be used as an alternative to arbitration or as an initial step in attempting to resolve disputes with the intention of following an unsuccessful mediation with a binding arbitration. Mediation requires the appointment of a knowledgeable neutral party who will act as mediator, and generally the expenses incurred in furnishing the mediator is shared by the parties. Although the mediator is truly neutral, a person experienced in the subject matter of the dispute will have insight into the issues arising in the dispute. Those insights will provide the parties with an opportunity to discuss both their strong points and their weak points with the mediator. The mechanism of testing the cogency of one’s position by discussing it with a knowledgeable neutral party is the essence of using mediation to resolve disputes. The legislature has recognized the importance of mediation and has protected the communications which occur during mediation. In § 904.85 of the Wisconsin Statutes, the legislature has expressly provided that oral or written communications made in mediation by any party are inadmissible in evidence in any judicial or administrative proceeding and not subject to discovery or subpoena in judicial and administrative proceedings. This protective privilege provided by the legislature not only protects the parties to the mediation, but also protects the neutral mediator, none of whom may be brought before a court or administrative body to testify as to what occurred during mediation. While there are a few exceptions under the statute to this protective privilege, they are not important for purposes of this article. Mediation as a method of resolving disputes has also been embraced by the courts. The legislature has expressly authorized the courts to order mediation to help the parties reach an agreement. The statute expressly states that the purpose of mediation is to focus on the key issues in the case and to exchange information between the parties in the course of exploring options for settlement. While the statute empowering the court to order mediation permits a party to object to the mediation process, as a practical matter, few objections are interposed by parties because the intrinsic value of engaging in a pretrial settlement effort is apparent. When the court orders mediation, the parties are given an opportunity to agree on the identity of the mediator, and if they cannot reach an agreement, the court will appoint a mediator. Where parties reach an agreement, they may select anyone who is available to act as a mediator or seek the assistance of a mediation organization such as the American Arbitration Association and various private organizations consisting of retired judges and lawyers interested and skilled in providing mediation services. A review of the Construction Industry Mediation Procedures published by the American Arbitration Association may be helpful in further understanding the concepts of mediation. AAA does not act as mediator but will administer the mediation process. AAA expects the parties to agree on the identity of the neutral mediator but will appoint one if the parties cannot agree. AAA suggests the following mediation clause: If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Construction Industry Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. The clause may be tailored to provide for the administration of
the mediation through any other organization or group providing
mediation services. The parties hereby submit the following dispute to mediation administered by the American Arbitration Association under its Construction Industry Mediation Procedures. (The clause may also provide for the qualifications of the mediators, method of payment, locale of meetings, and any other item of concern to the parties.) Under Rule M-2 of the AAA Construction Industry Mediation Rules, any party may initiate mediation by filing a submission with AAA for mediation, together with a $325.00 non-refundable case setup fee. Other organizations may or may not charge a setup fee. However, all organizations will expect the parties to pay for the fees and expenses of the mediator and will facilitate the remittance of those expenses to the mediator. Rule M-4 of the AAA rules provides that normally a single mediator will be appointed unless the parties agree otherwise. Rule M-5 covering the qualifications of a mediator exclude any person from acting as a neutral mediator who has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting a mediation appointment, the prospective mediator must disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the parties. Upon receipt of such information, the AAA must replace the mediator or immediately communicate the information to the parties for their comments and consideration. Under Rule M-7 of the AAA rules, any party may be represented by persons of the party’s choices. Under Rule M-8 the mediator fixes the date and time of each mediation session and the mediator will usually choose a convenient location for the mediation but will seek the agreement of the parties. By agreement of the parties, mediation may be conducted by telephone or other electric means. Under Rule M-9 of the AAA rules, each party is to provide the mediator with a brief memorandum of that party’s position at least ten calendar days prior to the first scheduled mediation session. The brief memorandum need not be exchanged with the other parties without their consent. The purpose of the brief memorandum is to inform the mediator of the issues to be presented, but in complex design and construction cases it is often necessary to provide the mediator with material and relevant design and construction documents. The devil is always in the details, and the details are not likely to be overlooked by a talented and knowledgeable neutral mediator. Since this is a non-binding procedure, the mediator does not have authority to impose any settlement on the parties. As provided in Rule M-10 of the AAA rules, the mediator is authorized to conduct both joint and separate meetings with the parties and to make recommendations for settlement. As a practical matter, the mediator will probably listen to both parties make a joint statement and then will meet privately with both sides in an effort to bring the parties closer to a settlement. Naturally the methodology of each mediator may vary, but an experienced and knowledgeable mediator will attempt to employ a method that appears to have the best chance of success given the nature of the dispute and the identity of the parties. Rule M-12 of the AAA rules recognizes the confidentiality of all communications made during mediation. As the parties acknowledge their weak points, the mediator will not normally discuss those weak points with the opposing party unless the party admitting to those weak points consents. An ethical mediator will not breach the request of a party for confidentiality of any admission. Mediation will continue until the parties agree that mediation is unsuccessful or until the mediator concludes that there is no hope for settlement in the course of that mediation. Rule M-15 of the AAA rules expressly provides that neither AAA nor any mediator is a necessary party in any judicial proceeding relating to the mediation and neither AAA nor any mediator shall be liable to any party for any act or omission in connection with any mediation conducted under AAA procedures. Most private mediation services require similar assurances. Mediation is often a valuable step in the process of resolving disputes, whether those disputes are headed for arbitration or for court. All too often, the parties remain in a state of denial or are buoyed by unsupportable optimism. A talented and knowledgeable mediator will look carefully for realistic opportunities to promote a settlement by the parties by speaking candidly to the parties about their strengths and weaknesses. Many mediations are successful even in the most complex disputes, and when the parties mediate by sincerely pursuing settlement, they are often pleased to find that the claimant’s minimum settlement point coincides with the respondent’s maximum settlement point and the dispute comes to an end. Robert J. Kay is the senior partner in the law firm of Kay & Andersen, S.C. and devotes his time to representing professional engineers, architects, contractors, material suppliers and owners of construction projects. Please feel free to contact him at (608) 833-0077 or at rjkay@kayandandersen.com. |
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Welcome New WSPE Members! |
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| The WSPE board of directors would like to extend a heart-felt welcome to the following new WSPE members:
New members contribute to the growth, strength, and leadership of the WSPE in enhancing its recognition as a leading voice for Professional Engineers throughout Wisconsin and promoting excellence in engineering. |
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WSPE Members in the News |
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| USDA Rural Development’s State Director Award
for Robert O. Parmley of Ladysmith Receives Award STEVENS POINT WI – February 23, 2007 – Wisconsin USDA
Rural Development State Director Frank Frassetto, has named Robert
O. Parmley, P.E. the recipient of the “State Director Award
for Engineering Excellence". Mr. Parmley is co-founder, President
and The award was presented to Mr. Parmley at the 2007 Rural Development Engineer Meeting held in Plover, WI on February 7, 2007. Mr. Parmley co-founded Morgan & Parmley, Ltd. in 1976 with Geo. H. Morgan, P.E. He holds a Bachelor of Science in Mechanical Engineering and a Master of Science in Civil Engineering from Columbia Pacific University. He is a registered professional engineer in Wisconsin and California, and is a certified wastewater treatment plant operator in Wisconsin. Among numerous professional awards, he was recently selected as the 2006 “Engineer of the Year” by the Wisconsin Society of Professional Engineers. Not only the author of over forty technical articles published in leading professional journals, Mr. Parmley is also editor-in-chief of fifteen McGraw Hill Engineering Books. Most currently, the Village of Glen Flora, Village of Gilman, Village
of Sheldon, and the Kennan/Catawba Sewage Commission, have benefited
from Mr. Parmley’s liaison efforts for Rural Development which
included planning, designing and funding, as well as construction
management. |
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How did you celebrate National Engineer’s Week? |
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| WSPE would like to hear how you, your company, and/or your community celebrated National Engineer’s Week February 18 – 24, 2007. Did you receive an award, attend a banquet, participate in the National Engineers Week Discover"E" student outreach program, or organize a public tour of interesting local projects the firm has engineered? WSPE members are encouraged to email WSPE E-News with a summary of your activities so that the association can share them with all members. Please email your story to drockhill@wspe.org and watch for it in an upcoming E-News. |
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2007 Dates to Remember |
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| March 3 - MATHCOUNTS State Competitions April 19 - 2007 Discovery Conference April 19 - GNPA Awards Ceremony and Banquet May 10-13 - The Lockheed Martin MATHCOUNTS National Competition will be held in Fort Worth, TX 2006-2007 Executive Committee/Board Meetings Board of Directors:
Executive Committee:
For a complete listing of local and national events please go to: |
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