PBK K-12 Collaborative Law in Public Sector Construction

Transcription

1 PBK K-12 Collaborative Law in Public Sector Construction Houston \\ Baton Rouge \\ Tulsa \\ San Antonio \\ Austin \\ Dallas \\ Fort Worth \\ McAllen \\ El Paso \\ PBK.com

2 PBK - Architecture \\ Engineering \\ Planning \\ Technology \\ Facility Consulting 11 Greenway Plaza, 22nd Floor Houston, Texas Phone: Fax: Web: PBK.com Kerri Ranney, JD Associate [email protected] Phone: Copyright 2012 PBK Readers are free to distribute this report within their own organizations, provided the PBK footer at the bottom of every page is also present. 2

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4 About PBK At PBK, our passion is performance. Our environmental approach focuses on delivering unique environments that perform -- to maximize operational efficiency, environmental responsiveness, and enduser achievement. Founded in 1981, PBK is a comprehensive planning and design firm that specializes in architecture, MEP engineering, structural engineering, civil engineering, master planning, technology consulting, exterior building envelope consulting and interior design. The company services clients in the Healthcare, Civil/ Public, Higher Ed, K-12 and Sport Facility markets. With more than 150 employees, PBK has offices in Houston, Austin, Dallas, El Paso, Fort Worth, McAllen, San Antonio, Baton Rouge, and Tulsa. Bio: Kerri Ranney, JD \\ Associate In her current role, Kerri serves as a client executive and oversees project production. Her wide range of experience includes construction document programming as well as construction administration. In addition to her project management role, Kerri serves as a liaison for PBK clients in the development of district-wide facilities assessments; she also handles planning and communications efforts for bond elections. Kerri possesses extensive knowledge in educational design and construction codes. She handles comprehensive code reviews, filing variance applications for accessibility renovations and upgrades, as well as energy code calculations for new construction and renovations. Kerri spent four years attending law school in a part-time program while maintaining her role at PBK. She was integrally involved as a student editor with the Construction Law Journal produced as a partnership between the State Bar of Texas Construction Law Section and South Texas College of Law. 4

5 An Introduction The new normal Expect to hear this phrase when topics of educational funding arise during conversations. In this new normal, every educational financial consideration will be scrutinized in pursuit of less expensive alternatives. When considering cost-cutting measures during the construction of a building, for example, we think of specifying durable materials to reduce maintenance costs, or installing high efficiency heating and cooling systems to reduce utility bills. However, cost savings opportunities extend far beyond the procurement of design, construction and maintenance/operations services. Allow me to explain. As a lawyer, I m aware that some stereotypes are rooted in truth, though there is value in discussing the potential cost savings of doing a more thorough analysis of resolution methods available in construction disputes (and any other dispute for that matter). In the world of dispute resolution, we have litigation and alternatives. Among the alternatives is collaborative law, a method with elements of both arbitration (bring on the experts) and mediation (facilitated negotiations). With roots in family law, it has begun to grow some momentum in other areas of civil law. Collaborative Law: Defined Simply stated, collaborative law is a voluntary, interest-based process focused on resolving a dispute in a manner that is beneficial to all parties involved. Too good to be true? Think again. Voluntary: Choices. The parties have choices, the first of which is whether or not to enter the resolution process at all. Should the parties indeed opt to continue, each step of the process is voluntary; any party is free to walk away from the negotiations should he/she not desire to continue. Interest-Based Negotiations: Collaborative law also allows parties to develop solutions based on business goals and concerns they are not limited to legal remedies. The end result of a successful, collaboratively resolved dispute is a settlement agreement that meets each party s goals and concerns to the greatest extent possible. Interests are prioritized. Trained Professionals: The process utilizes collaboratively trained attorneys, neutral experts and facilitators focused solely on the interests of the parties and the success of the process. Confidentiality: Because public entities often desire to keep their legal disputes private, this process allows the proceedings to remain confidential. Dedicated Settlement Counsel: The parties attorneys focus solely on attaining a negotiated settlement acceptable to all. Should the process end prior to settlement, attorneys are barred from representing the parties during litigation, allowing all attorneys in the collaborative process to focus on resolution. The exception to this rule occurs when a governmental entity (i.e. a school district) is a party. If both parties agree at onset, and the in-house collaborative attorney representing the governmental entity is adequately isolated from further participation, another in-house attorney within the governmental entity may continue to represent the entity in legal proceedings. Key Representatives at the Table: The collaborative process allows key stakeholders to participate in the negotiations; should additional representatives be required, they may also participate in the negotiations, information gathering sessions and/or other meetings when appropriate. Flexibility: Fortunately, the collaborative process is not a rules-driven process. Parties work within the framework without the rigidity of other dispute resolution methods. While firm requirements are in place, they re designed to facilitate the process rather than stifle negotiations or limit resolution possibilities. 5

6 Limits Discovery: The collaborative process limits the volume of discovery and documentation requests because it allows parties to focus on issues relative to the dispute. Limiting discovery can reduce costs associated with locating the requested documents. Business-Based: Not too many desire to spend time on documentation production, subpoenas or depositions. Collaborative law allows for parties to schedule meetings at their convenience; they re able to remain focused on their respective businesses, even in the midst of a legal dispute. Collaborative Law: How Does It Compare? Now that we ve dissected and reviewed the different aspects of collaborative law, we clearly see it s an attractive process for legal disputes. Let s look now at how it differs from the more traditional dispute resolution methods. Litigation: Collaborative law can be faster and less expensive than traditional methods because parties are in control of the scheduling and information gathering process. It can also be less burdensome, as employees are able to focus on their professional obligations rather than deal with the dispute. Resolution in collaborative cases is a negotiated settlement agreement instead of a judgment rendered by a third party. While filing the lawsuit itself is always voluntary, the collaborative process is voluntary throughout every stage - which means each party can elect to end the process at any given time. Litigation requires parties to attend depositions or legal hearings at the court s convenience; with collaborative law, the parties can schedule meetings at their convenience. Arbitration: Because arbitration is similar to litigation, collaborative law can also be faster and less expensive than this method. Compared to binding arbitration, parties in collaboration are in control of the outcome, as the resolution is structured in a negotiated settlement agreement. While non-binding arbitration allows the parties to ignore the panel s decision, this method is rarely used and does not allow the parties to participate in the outcome. Another difference: in collaborative law, the parties may opt to continue or terminate the process. In arbitration, however, once proceedings have begun, the parties will most likely be required to see it through to the end. Mediation: While mediation and collaborative law have many similarities, they differ in schedule and negotiation tactics. Mediation usually utilizes the caucus method which does not provide an opportunity for the parties to discuss the issues directly. This can slow the process significantly. Mediation is often an exercise in positional bargaining and usually led by the parties trial counsel, not an interest-based negotiation. Positional bargaining is a process where parties begin with seeking the best resolution for themselves and eventually end with some level of compromise. Collaborative law, on the other hand, allows the parties (aided by their dedicated settlement counsel) to focus on their interests while seeking resolution. Mediation is often a one-time event, merely a requirement to move to another dispute resolution method. Collaborative law utilizes time otherwise spent on mediation to seek a mutually agreeable resolution. Collaborative Law: Limitations Collaborative law is merely a tool in the dispute resolution toolkit. It is, by no means, the solution to all legal issues. While collaborative law is a good process that treats legal issues as business issues, it does have limitations. 6

7 Injunctions: While injunctions are available in the collaborative process, any injunctions sought must be agreed to by all parties. For example, should one feel the need for an injunction and does not obtain the other party s mutual agreement, the injunction may be granted, though the collaborative law process is terminated. However, it is important to note that the parties in disagreement may still commence litigation with their trial counsel, obtain a ruling from the court on the motion for an injunction, and then agree to stay the action while they (and their collaborative counsel) commence the process. Subpoenas: Collaborative law involves the participation of two or more parties to a dispute. If a third party is needed for information gathering or other purposes, the parties may be able to obtain a subpoena through a cooperative litigation proceeding that is commenced for that purpose only, not for the resolution of the underlying dispute. Power: When a legal dispute is handled through the courts, the power of the oath and the threat of prosecution for perjury or contempt can be very persuasive. However, these punitive powers of the court are not available in the collaborative law setting. If one is needed for a particular situation, collaborative law is not the best method of dispute resolution. Dedicated Settlement Counsel: Because the parties attorneys in the collaborative process are hired only for the purpose of dispute settlement, they must stand down should the parties end up having to file suit or institute arbitration to resolve the matter. This requires the parties to engage trial counsel to handle the litigation or arbitration. However, the parties and their trial counsel may, by agreement, be able to use some - or all - of the fruits of the collaborative process (i.e. stipulating to the findings of a collaborative neutral expert, agreeing documents exchanged shall be deemed disclosed in litigation discovery, or building on collaboratively developed options in later settlement discussions). Collaborative Law: Status Report in Texas In the 82nd Texas Legislature, the Uniform Collaborative Law Act was introduced. In June 2011, Governor Rick Perry approved HB 3833 The Uniform Collaborative Family Law Act (UCFLA) which codified the collaborative law process for use in matters arising only under the Family Code. Behind Utah and Nevada, Texas became the third state to enact at least part of the UCLA. The Act has since been enacted in Hawaii and Washington DC and introduced in Maryland, Ohio and Alabama. Following suit, the Washington state judiciary is now considering adoption of the Act. In 2013, a bill will be introduced in the Texas Legislature which will expand The Uniform Collaborative Family Law Act to include all areas of civil law. Until this expansion occurs, parties may elect to use the collaborative law model for any dispute while still maintaining statutory protections under the alternative dispute resolution statute and evidentiary rules. Summary The collaborative process is certainly distinguishable from alternative dispute resolution methods available in Texas. When a public school district needs to find construction resolution quickly, confidentially and cordially - all the while focusing on their goals and concerns - collaborative law may be the best choice. After all, for public school districts the procurement process for professional or construction-related services can be time consuming and the contractual relationship between the school district and a vendor is often for an extended duration. While legal disputes on construction projects involving public school districts are not commonplace, they do arise every now and again. With budget cuts at every turn and financial decisions under the microscope, perhaps the new normal will be to adopt the budget-friendly, non-adversarial dispute resolution process that is collaborative law. 7