Mediator Resume

Diepenbrock Elkin Dauer McCandless LLP - Partner

Attorney

Partner, Diepenbrock Elkin Dauer McCandless, 2020 - Present; Partner, Diepenbrock Elkin Gleason LLP, 2011 - 2020; Shareholder, Diepenbrock Harrison, 1994 - 2011; Associate, Petit & Martin, 1990 - 1994; Associate, Wolf Bloch Shorr and Solis-Cohen, 1988 - 1990; Associate, Diepenbrock Wulff Plant & Hannegan, 1987 - 1988; Judicial Attorney to Presiding Justice Robert K. Puglia, California Court of Appeal Third Appellate District, 1985 - 1987.

Focus on construction law, government contract and business litigation. Represented contractors; subcontractors and owners in construction delay claims; claims involving differing site conditions; extra work; construction defects; and professional negligence; mechanics’ lien; bond and stop payment notice claims; and challenges to awards of public contracts. Assisted legislators as an expert on legislation for the construction industry, including in 2016 for new lease-leaseback legislation in California. Drafted all manner of public and private construction documents. Representation includes: prime contractor in a complex, multi-party case involving delays and extra work in the construction of a $50M water treatment facility; prime contractor in a default termination on the construction of a $106M power plant project; the State of California in a default termination of a contractor on a $19M project related to the State Water Project; contractor in prosecuting extra work claims related to the construction of a bridge; steel fabricator prosecuting extra work and delay claims on the new San Francisco TransBay Terminal; design builder in a hospital project; owner of a major hospital system in numerous extra work and/or delay claims; and numerous local public entities and school districts on a variety of construction disputes. Represented parties in complex business disputes; including trade secret claims; unfair business practices; and ownership disputes.

Mediated numerous construction disputes, including disputes between owners and contractors on private and public works projects; between owners and design professionals on private works projects; and between prime contractors and subcontractors on private and public works projects. Disputes include extra work claims, termination claims, differing site condition claims, delay claims, defective work claims, and a variety of other payment disputes. Have completed a 40 hour mediation training program through the University of California at Davis, as well as other training programs and updates through the AAA and other providers.

Mediated a nine figure dispute between the owner and prime contractor involving a variety of extra work and delay claims on a public works project. The matter settled. Mediated an eight figure construction dispute between a prime contractor and subcontractor involving an oversees power plant. The matter settled. Mediated an eight figure dispute between the prime contractor and electrical subcontractor related to the construction of a new hotel and condominium development. The matter settled. Mediated various seven and eight disputes between the owner and prime contractor and between the prime contractor and subcontractors involving numerous claims associated with the construction of a new nine figure residential tower. The majority of the claims settled. Mediated multiple seven and eight figure construction disputes between owners and prime contractors on a variety of public and private projects. The majority of the matters settled. Mediated a variety of six figure disputes involving residential construction projects, civil construction projects, and other smaller public works projects. The majority of the matters settled. Mediated a dispute between a performance bond surety and the owner of a transit project. The matter settled. Mediated a dispute between the owner and prime contractor involving extra work claims related to the construction of a road for an irrigation district. The primary issues involved the calculation of quantities of fill and the quality of the fill. The case settled. Also mediated a case between the same parties on another construction project involving the construction of a road and bridge. The contractor was default terminated, and the parties have competing claims with the contractor seeking to reverse the termination and be paid for extra work and the owner seeking to recover the excess costs to complete the project by a replacement contractor. The case settled. Mediated a case between a prime contractor and the mechanical subcontractor involving in the construction of a hospital. The subcontractor sought to be paid for extra work. The prime contractor asserted delay damages based on extended home office and field office overhead. The case settled. Mediated disputes between prime and subcontractors related to utilities for a health care facility and related to changed conditions for civil work on a public works project. Both matters settled. Mediated dispute between design professional and owner related to health care facility. The matter settled.

I am a firm believer in mediation, and I believe the proper preparation is required by all parties. I believe that mediation briefs should be succinct and persuasive and, absent a compelling reason otherwise, should be exchanged. I like to have the parties who actually were involved in the project or in the business relationship participating in the mediation to provide the first-hand history and context. I typically prefer joint sessions with presentations tailored to the complexity of the issue, rather than jumping in with private sessions. However, I believe the parties should make the final decision in that regard because it is their case. The mediator's role is to be prepared, listen carefully to the different sides, provide objective and candid advice, to identify where the areas of compromise are, to push the parties appropriately based on who they are and what the issues are. I do not like mediators who take over the case and substitute their judgment for the parties' counsel. The mediator's role is to be a facilitator, not an advocate.

University of the Pacific, McGeorge School of Law (JD - 1985); University of Santa Clara (BA - 1982).

Admitted to the Bar: California (1985); U.S. District Court: Eastern District (1985), Northern District (1990), Central District (2010) and Southern (2010) Districts of California, Eastern District of Pennsylvania (1988), District of Colorado (2002); U.S. Supreme Court (1989).

American College of Construction Lawyers; American Bar Association: Forum on the Construction Industry, Public Contract Law Section; Sacramento County Bar Association; Federal Bar Association; Associated General Contractors of America; Associated General Contractors of California: Legal Advisory Committee; The Beavers; Coalition for Adequate School Housing.

"The Potentially Catastrophic Design Error and the Ethical Response" (American College of Construction Lawyers, 2017) "Lease Leaseback Delivery with Legal Confidence" (Associated General Contractors of CA, 2016-2017) "Lease Leaseback Project Delivery" (Lorman, 2016) "Construction Law: How to Plan for a Successful Project (Lorman, 2016) "When is Enough, Enough? Considering when a Contractor Can Stop Work as a Result of Owner Changes" (AGC, LAC 2015) “Alternative Project Delivery”, Sections on Design Build and CM at Risk in Chapter 18 of Construction Subcontracting, A Comprehensive Practical and Legal Guide (ABA Forum on the Construction Industry, 2014) “Stop Payment Notices, Bonds and Payment Issues” (Associated General Contractors of California, Shasta District, 2014) “Current Issues in Public Contracting” (Central Valley City Attorneys’ Association, 2014) “Design-Build: Have We Perfected It, or is There Work Left to be Done?” (ABA Forum on the Construction Industry, 2012) “Overview of Common Claims in Public Construction Projects" (Association of California Water Agencies, 2012) “Issues in California Public Construction Contracts” (Various Cities, 2012).

Hourly Rate: Not provided Daily Rate: $12,000.00 Study Rate: Not provided Cancellation: Not provided Cancellation Period: Not provided Comment: Flat rate, inclusive of preparation, up to 2 hours of pre-mediation presentations and 4 hours of follow-up. Pre-mediation presentation sessions of 2 hours or more and/or follow up in excess of 4 hours will be billed at $550 per hour. There is no charge for travel time, but travel costs will be billed. There is no cancellation charge.

English

United States of America

Sacramento, California