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  1. #1
    Ron Bibler's Avatar
    Ron Bibler Guest

  2. #2
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    Default Re: Court or Arbitration?

    Have you tried other methods of communications?

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  3. #3
    Ron Bibler's Avatar
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    Default Re: Court or Arbitration?

    Working late Rick?

    Best

    Ron


  4. #4
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Ron Bibler View Post
    Pick one and Why?

    Best

    Ron
    Court

    Arbitration is to come to an agreement of who pays for what. The client would already going to be convinced that you owe him and will be looking to settle the situation by you paying. Much harder for anyone to prove at fault in a court. Not to mention the fact that that person will have to pay lawyer fees for the court appearance which could go on for some time with an unknown outcome.


  5. #5
    Kevin Luce's Avatar
    Kevin Luce Guest

    Default Re: Court or Arbitration?

    My experience has been different. I use Allen insurance wording (required at the time to get a $1,500 deductible) which clearly requires my client to use this specific arbitration company and that the client is responsible for all fees. I used my local lawyer (cost me $1,000) and made my insurance company aware of the lawsuit. My client's lawyer asked the judge not to enforce the arbitration part of the contract which he was denied. Then he asked to use a different arbitration company and was denied again. The case never went any further after that.

    Now if your talking about mediation, I would never go that route. My wife use to work for a law firm and in many cases they never came close to agreeing on anything and it was a waste of time and money for everyone.

    (arbitration)
    noun: the act of deciding as an arbiter; giving authoritative judgment

    (mediation)
    noun: negotiation to resolve differences conducted by some impartial party

    One last note: If my insurance company is willing to give me a $1,000 discount on my deductible by including their arbitration wording in my contract, then it makes me think that arbitration is better than going to jury when it comes to cost.

    Last edited by Kevin Luce; 10-17-2009 at 08:33 AM. Reason: added the last sentence.

  6. #6
    Kevin Luce's Avatar
    Kevin Luce Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Ted Menelly View Post
    Court

    .... Not to mention the fact that that person will have to pay lawyer fees for the court appearance which could go on for some time with an unknown outcome.
    That goes both ways. The insurance company or yourself will also need to pay for the time it takes plus the unknown outcome.

    I was told the average lawsuit takes 5 years around here. I am involved with two different lawyers as an expert witness and one case has been going on for 6 years and the second one 7 years. While the court dates have been set but then canceled many time, I don't know when these cases will come to a closure.


  7. #7
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    Default Re: Court or Arbitration?

    Quote Originally Posted by Ron Bibler View Post
    Working late Rick?

    Best

    Ron

    Yes sir I was. Its been a busy week so I was up late cranking out the reports. Friday nights aren't like they used to be when we were 18 years old are they?

    rick


  8. #8
    Kevin Luce's Avatar
    Kevin Luce Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Ron Bibler View Post
    Working late Rick?

    Best

    Ron
    Ron, it shows you posted this at 3:30 in the morning. I hope you got your 4 hours of sleep in.


  9. #9
    Ron Bibler's Avatar
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    Default Re: Court or Arbitration?

    Quote Originally Posted by Kevin Luce View Post
    Ron, it shows you posted this at 3:30 in the morning. I hope you got your 4 hours of sleep in.
    The dog wanted out

    Saw that i had the board up so Rick had put his little note up... and now its 9:12 AM Just got up.... Bet Rick is still in the sack....Zeeeeeeeeeeeee

    Best

    Ron


  10. #10
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    Default Re: Court or Arbitration?

    No, I've been up since 6:30am cause my neighbor is having a garage sale and all the fools are parking in my driveway and using our yard as their path.

    My sprinklers have been on all morning wetting them down.

    rick


  11. #11
    Ron Bibler's Avatar
    Ron Bibler Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Rick Hurst View Post
    No, I've been up since 6:30am cause my neighbor is having a garage sale and all the fools are parking in my driveway and using our yard as their path.

    My sprinklers have been on all morning wetting them down.

    rick
    Only you They do come out for other guys junk

    Best

    Ron


  12. #12
    Joseph Farsetta's Avatar
    Joseph Farsetta Guest

    Default Re: Court or Arbitration?

    Mediation and Arbitration is a GREAT way to settle matters out of court. In some instances, however, an arbitration clause may actually be overturned by the court by a client seeking to do so. Such was the case in Mississippi, where the inspection contract was deemed to be opressive. With some arbitration companies, BOTH parties are required to pay up front, with $1000 each to start the proceedings. Still others work on a sliding scale of fees.

    In order for arbitation clauses to be enforceable, or clauses in any contract for that matter, many factors can be brought to bear. These include everything from the amount of legaleze, to the amount of fine print, to the sophistication of the client. Above all, clauses deemed to be oppressive can lead to trouble for the inspector. Many of us tend to want to throw the"kitchen sink" in our contracts, in an effort to protect us. Sometimes, these clauses and conditions can come back to bite us.


  13. #13
    Ron Bibler's Avatar
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    Default Re: Court or Arbitration?

    So Joseph would not court be in the better intrest of the inspector if one is not trying to come to an agreement but rather to win and not give anything to some one that is not do anything...?

    Best

    Ron


  14. #14
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    Default Re: Court or Arbitration?

    Arbitration vs. Court TrailThe Arbitration Trap: How Credit Card Companies Ensnare Consumers


    Court Trial


    Service of process required: Due process requires actual notice through an official process server to initiate a claim.

    Neutral decision-maker: Jury of peers or impartial, publicly employed judge with public record of decisions.

    Open, public process that sets precedent.

    Due process rights to fair and reasonable discovery of information; hearings and motions filed at little or no cost.

    Contingency fee system, generally in negligence cases or product liability cases, means plaintiffs’ attorneys, not consumer-plaintiffs, take on financial risks for duration of case.

    Right to appeal a loss on the merits of the case or other grounds.


    Mandatory Arbitration

    Certified mail with signed receipt or by private carrier with receipt signed by “person of suitable age and discretion” deemed sufficient notice for arbitration even though many consumers remain unaware of cases pending against them.

    Biased decision-maker: Arbitrator chosen from a limited panel and paid by an arbitration provider selected and compensated by the company; no public record of prior decisions generally available to consumers.

    Closed, secretive process without public record or precedential value.

    Little discovery, at discretion of arbitrator. Other due process rights must be paid for on an à la carte basis.

    Pay-to-play payment system means individual must shell out costs up-front at every twist and turn in case; Loser pays rule may further financially burden consumers when imposed.

    Very limited grounds for appeal, typically limited to fraud or corruption of arbitrator, unconscionable clause or contract, or failure of company to prove that consumer agreed to BMA.


  15. #15
    Joseph Farsetta's Avatar
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    Default Re: Court or Arbitration?

    Ron,

    It depends on many factors, which starts with a decision of the inspector whether to mandate arbitration. I am trying to not speak or make reference to the services we provide, so I am couching my responses.

    All I can say is that arbitration can still be neutral, should engage arbiters who are knwledgeable of our industry, contracts, and even construction, and should be affordable. If you want to take it beyond all these, make it appealable, so there is recourse if someone feels wronged in the process.

    I think this is about all I can say without being accused of free advertising on this forum.

    Last edited by Joseph Farsetta; 10-18-2009 at 02:10 PM. Reason: correction

  16. #16
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Joseph Farsetta View Post
    Ron,

    It depends on many factors, which starts with a decision of the inspector whether to mandate arbitration. I am trying to not speak or make reference to the services we provide, so I am couching my responses.

    All I can say is that arbitration can still be neutral, should engage arbiters who are knwledgeable of our industry, contracts, and even construction, and should be affordable. If you want to take it beyond all these, make it appealable, so there is recourse if someone feels wronged in the process.

    I think this is about all I can say without being accused of free advertising on this forum.
    Now that is funny. If you feel wronged in the process. My feelings would be that I was wronged in the process just for paying for arbitration.

    This whole arbitration thing is pretty silly. That is all you here lately for classes to become an arbiter. As serious misuse of time. Some may feel that court is a waste of time but things would almost never go that far because people do not want to deal with court for petty bull crap. Almost all claims against a home inspector would never go forth except the most absurd, the home inspector slept thru the inspection cases.

    Arbitration is just the new Preepy, pain in the but, self indulgent, have to do it in the professional, educated, self absorbed, got a show him, pain in the ars (oops, already said that) get what I want, I am right, I'll get him to pay, I did not even look at the home I was buying, ignorant, I do not know anything about nothing, way to do things now adays.

    Say to most of these people....lets hit the court benches and see who can last longer, and almost all will disappear in a heart beat. How many folks do you think will put out a thousand or thousands for an expert witness and lawyer fees with iffy subject matter and an EW that and a lawyer that, cannot garranty them the outcome of paying for a 500 water heater that crapped out a couple months down the road and a fogged window that was not showing at the time and a GFCI rceptacle that died right after testing. Suck it up and fix the stuff. Its called maintaining a home. Get on with life.


  17. #17
    Kevin Luce's Avatar
    Kevin Luce Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Ted Menelly View Post
    Now that is funny. If you feel wronged in the process. My feelings would be that I was wronged in the process just for paying for arbitration.

    This whole arbitration thing is pretty silly. That is all you here lately for classes to become an arbiter. As serious misuse of time. Some may feel that court is a waste of time but things would almost never go that far because people do not want to deal with court for petty bull crap. Almost all claims against a home inspector would never go forth except the most absurd, the home inspector slept thru the inspection cases.

    Arbitration is just the new Preepy, pain in the but, self indulgent, have to do it in the professional, educated, self absorbed, got a show him, pain in the ars (oops, already said that) get what I want, I am right, I'll get him to pay, I did not even look at the home I was buying, ignorant, I do not know anything about nothing, way to do things now adays.

    Say to most of these people....lets hit the court benches and see who can last longer, and almost all will disappear in a heart beat. How many folks do you think will put out a thousand or thousands for an expert witness and lawyer fees with iffy subject matter and an EW that and a lawyer that, cannot garranty them the outcome of paying for a 500 water heater that crapped out a couple months down the road and a fogged window that was not showing at the time and a GFCI rceptacle that died right after testing. Suck it up and fix the stuff. Its called maintaining a home. Get on with life.
    I was told that insurance companies tried the court direction and found they were putting out more money than by settling. I do believe them since they are here to make money.

    You must have had a bad experience.


  18. #18
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    Default Re: Court or Arbitration?

    Don't need lawyers for cases under $5,000.00. Small claims court can handle these cases. Anybody can file a claim for the $30.00fee and let the magistrate determine outcome.


  19. #19
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    Default Re: Court or Arbitration?

    What experience has the arbitrator? What credentials do they hold? Did they take a one or two day course? Are they familiar with home inspections? Not all arbitration services are created equal.

    Does the arbitrator have any conflicts such as selling arbitration services and being a chair of an ethics and standards of practice position?


  20. #20
    Kevin Luce's Avatar
    Kevin Luce Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Raymond Wand View Post
    What experience has the arbitrator? What credentials do they hold? Did they take a one or two day course? Are they familiar with home inspections? Not all arbitration services are created equal.

    Does the arbitrator have any conflicts such as selling arbitration services and being a chair of an ethics and standards of practice position?
    (arbitration)
    noun: the act of deciding as an arbiter; giving authoritative judgment
    Yet in many cases, the judgment of an arbitrator is enforced.

    So I don't know the answer to your questions but it seems to me that they would have enough of something to be recognized by the courts.

    Allen Insurance wording included a specific arbitration company plus the client is responsible for the total amount of fees (I called the company to determine if there was any fees I might not be aware of). Do you guys not have that wording?

    The Arbitration company did tell me at the time that some of the fees can be directed back at the home inspector if it didn't conflict with the wording of the contract.

    Last edited by Kevin Luce; 10-19-2009 at 06:47 AM.

  21. #21
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Ken Amelin View Post
    Don't need lawyers for cases under $5,000.00. Small claims court can handle these cases. Anybody can file a claim for the $30.00fee and let the magistrate determine outcome.
    Technically you do not need a lawyer at all.

    My point about arbitration is that if someone is going to try to get something for nothing from me they are going to have to fight me for it. To pay out money for arbitration and then come to a settlement....what a miscarriage of justice.

    As far as the insurance companies preferring arbitration is because almost all cases are bull crap that the home inspector would be paying out of his pocket anyway due to his deductible. It is the bigger cases that the insurance companies are afraid of and they believe the odds are in their favor to pay less on a big clain in arbitration. That leaves everyone else with a small case paying out of their pocket and getting screwed along the way because this is what the insurance company wishes. The insurance companies are not worried about the outcome and pay out on the small cases it is the rediculaous legal fees that add up and the insurance company is not going to pay them.

    Get rid of the insurance companies and get rid of arbitration and you will see the amount of cases against home inspectors dwindle to nothing because no one will want to follow the whole route of a court case for all their petty crap. As far as the big cases they will o to court anyway as they always have.


  22. #22
    Joseph Farsetta's Avatar
    Joseph Farsetta Guest

    Default Re: Court or Arbitration?

    Raymond,

    I agree with some of your comments, but as a point... I am not an arbiter. If you're going to attack me, at least be remotely accurate, instead of shooting from the lip.

    IAS' neutrals come from a variety of backgrounds; attorneys, inspectors, construction experts, contract specialists... all are knowledgable about the inspection industry.

    The occasional valid point you make is often tainted by your disdain for me. Bringing anything else into this intelligent discourse only serves to demean your stature.


  23. #23
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    Default Re: Court or Arbitration?

    Joesph

    I am only asking questions that come to mind and as a result of your own credibility hinderance, if you don't like the questions get out of the kitchen.

    Your record speaks for itself. The fact that you are ESOP chair and selling yet another product for arbitration is troubling in itself.


  24. #24
    Ron Bibler's Avatar
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    Default Re: Court or Arbitration?

    Quote Originally Posted by Raymond Wand View Post
    Joesph

    I am only asking questions that come to mind and as a result of your own credibility hinderance, if you don't like the questions get out of the kitchen.

    Your record speaks for itself. The fact that you are ESOP chair and selling yet another product for arbitration is troubling in itself.
    Ray get a life He has not tryed to sell anything today...

    Best

    Ron


  25. #25
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    Default Re: Court or Arbitration?

    Non binding arbitration? Why would anyone submit to non binding arbitration seems like a waste of money?
    Who are the experts who make up IAS?


  26. #26
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    Default Re: Court or Arbitration?

    My contract has a three step process - Mediation, Arbitration and then the Court Room. For arbitration I stipulate an arbitrator with a construction background. I also have a clause that if the client takes me to court and loses then they also cover my legal expenses.

    I have yet to try it out but I am sure that the contract three step process is a bigger speed bump to a lawyer than they like to see.....

    //Rick

    Rick Bunzel
    WWW.PacCrestInspections.com
    360-588-6956

  27. #27
    Ron Bibler's Avatar
    Ron Bibler Guest

    Default Re: Court or Arbitration?

    Quote Originally Posted by Rick Bunzel View Post
    My contract has a three step process - Mediation, Arbitration and then the Court Room. For arbitration I stipulate an arbitrator with a construction background. I also have a clause that if the client takes me to court and loses then they also cover my legal expenses.

    I have yet to try it out but I am sure that the contract three step process is a bigger speed bump to a lawyer than they like to see.....

    //Rick
    From what I understand if you have a statement like ( if they lose they pay my cost. ) This works both way if you lose you pay there cost

    You may want to check that. It works both ways. If its good for then it good for them.

    Best

    Ron


  28. #28
    Joseph Farsetta's Avatar
    Joseph Farsetta Guest

    Default Re: Court or Arbitration?

    Rick's scenario is similar to the IAS model, though not spelled out that way. As to the construction experience factor, we provide the bios of 5 neutrals, and through a process of elimination, the parties are left with one, who mediates and arbitrates.

    [FONT='Times New Roman','serif']As to the notion of binding versus non-binding, this is precisely the model that Rick eludes to. Non-binding arbitration often has the effect of binding arbitration once it reaches court.[/FONT]


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