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Distinct Advantages Involved in Eminent Domain Mediation

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HouseEminent domain occurs when the government or a business takes real property for the public good. Due to the seriousness of this process, many property owners may disagree with the approach or compensation provided by the party that is taking the property. Using mediation provides a number of distinct advantages over other options, including the following:

Subject Matter Expertise

Parties involved in mediation are able to select the person who will facilitate communication during the mediation process. This allows them to select someone who has experience in eminent domain and other real estate cases. In litigation, the parties may be assigned a random judge who may have never worked on a case involving eminent domain in the past.

Control Over the Outcome

In mediation, parties collaborate toward mutual goals. They also only reach an agreement in a voluntary fashion. In these ways, parties demonstrate significant control over the process. The parties are not constricted to the court-mandated procedure or possible outcomes. Instead, the parties can focus on the merits of the case and their own interests in the process. This often allows them to reach outcomes that are creative and customized to their needs.

Fairness

Many property owners feel that the eminent domain process is not fair to them. They may feel that they do not have options and must agree to the price evaluation. However, in mediation, the parties can level the playing field. They can agree to a form of evaluation that they believe will yield a fair result.

Affordability

Many parties agree to the mediation process because it is an affordable alternative to litigation. In litigation, the parties may spend significant amounts of money on hiring lawyers to represent their interests and to follow court-mandated procedures regarding the condemnation process. Other expenses that may cause litigation to be more expensive include expert witness fees, lost productivity for the purchasing party and negative publicity. Mediation avoids these pitfalls and offers an affordable option.

Issues Resolved through Special Education Mediation

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Five year old disabled boy studying in wheelchairParents who have children enrolled in school who have special needs may reach a point during their child’s academic career when conflict arises. Often, this conflict may arise due to a lack of understanding between school administrators and the child’s special needs. Some of the potential issues that may arise include:

IEP

A child with special needs has the right to an Individualized Education Plan. This plan should incorporate the child’s condition and learning needs. In some instances, the IEP process may seem repetitive with children with diverse needs having very similar IEPs. These IEPs may give students more time to take tests, may reduce the number of choices on multiple-choice questions, may provide preferential treatment, may provide for an interpreter, may provide a tutor or may offer additional assistance to students. Parents and school administrators may be able to come up with customized solutions in an IEP that meet the child’s needs and are tailored to provide success for him or her in the academic setting.

Discipline

When a child behaves in a certain way such as by having problems focusing on a task, talking incessantly, making noises during schoolwork or taking other action that may seem unruly, the child may be disciplined. However, many of these behaviors may revolve around the child’s special needs and should be dealt with in a different manner. Often, the mediation process provides for better communication and educating school administrators about the child’s condition and needs.

Accommodations

A child with special needs may require accommodations, such as a change to the structural environment or permission to miss days because of illness. Parents and school administrators can discuss appropriate accommodations during mediation.

Resolving Church Disputes through ADR

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Black Wooden church in autumn in Budir, IcelandMany churches discourage the use of lawsuits to resolve a dispute.  However, conflict may arise in the religious setting, such as disagreements between parishioners, issues between churches, purchases that church administrators make that others may disagree with or other disputes that arise that affect the church or parishioners.  Mediation often advances the goal of the religious institution and can help to successfully resolve disputes.  Mediators help those in conflict in church disputes in the following way:

Respect Religion

Mediators are trained in conflict dispute resolution.  They understand that a party’s religious and cultural values often help inform his or her thoughts in dispute.  The mediator can acknowledge these values and use them in a positive manner to appeal to the parties’ needs and interests.

Discourage Escape Tactics

Sometimes people in conflict use escape tactics to avoid conflict.  They may blame the other party or declare that they simply will not be involved in whatever the issue is.  A mediator can guide parties away from these reflexive declarations and encourage them to confront the conflict head on.  A mediator can explain that conflict provides an opportunity for the parties to come together and work out a solution that works for all parties involved.

Uncover Important Information

Mediators ask clarifying questions and dig for information.  This helps them understand what led to the conflict and to identify what the parties’ interests are.  Once the mediator has this information, he or she can use it to appeal to the parties’ desire to resolve the conflict while addressing these interests.

Promote Personal Responsibility

Mediators can communicate with each party individually and encourage the party to consider how he or she contributed to the issue and what he or she can do to help resolve the conflict.

Settlement Considerations of Negligence Cases

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Parties who are injured because of car accidents, slips and falls, defective products or other accidents may decide to litigate their case.  The defendant or the victim’s legal counsel may recommend the process of mediation to defray some of the costs involved in litigation and to speed up recovery of financial compensation.  Some of the following factors may impact the willingness of the parties to settle the case in mediation:

Expectations

It is not uncommon for injury victims to have an outlandish idea about the value of their case.  They may have heard news stories where multi-million dollar verdicts were issued.  However, this is not the norm.  Likewise, an insurance company may believe that it will prevail on a particular claim only to discover later that a jury holds its insured responsible.  If both parties enter mediation with a realistic expectation regarding the potential value of the case, they will be more likely to settle their claim.

Worst Case Scenario

It can also be helpful to the parties to consider the worst case scenario.  For the victim, this may be to recover nothing on the case.  For the defendant, it may be to receive a judgment against it for a sizable amount.  This can help the parties determine whether it is in their best interest to settle the case or to take a chance with a trial.

Recent Decisions

The parties may consider recent decisions made in the same venue to try to predict how a judge or jury may rule in a particular case.  It may also look at how similar issues were decided in recent cases, such as questions regarding causation or contributory negligence.

Elements and Defenses of a Negligence Claim

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Gavel and Stethoscope on Gradated Background with Selective Focus.There are four basic elements to a negligence claim.  These and possible defenses to them are discussed below.

Duty

This element requires the victim to establish that the defendant owed the defendant a certain duty of care.  This may be due to a relationship between the parties, such as doctor and patient or product manufacturer or consumer.  A defense to this element may be that there was not such a relationship between the parties.

Breach of Duty

The victim must establish that the defendant breached his or her duty of care.  This may be established by showing how the defendant’s conduct rose to the level of negligence.  In a car accident case, this may be because of violating a traffic law.  In a slip and fall case, this may be due to not inspecting the area for hazards.  Defenses to this element are often the most common.  The insurance company may try to say the victim contributed to the accident or that the defendant acted within the proper standard of care.

Causation

This element requires the victim to establish the link between the defendant’s breach of duty and the victim’s injuries.  For example, the defendant’s act of speeding may have caused him or her to collide with the victim’s vehicle.  The defense may argue that the injures were pre-existing or were caused by another factor.

Damages

The victim must show that he or she was injured.  The defense to this element may be that the victim’s injuries are exaggerated or were not incurred in the accident.

The Anatomy of Auto Accident Mediation

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Depositphotos_36839587_s-2015Auto accident mediation is a confidential and voluntary way to potentially resolve an auto accident claim.  The victim and the insurance company may attend mediation with a trained third-party neutral who facilitates discussion and guides the parties during the process.  Typical auto accident mediation includes the following steps:

Select a Mediator

The parties can select a mediator.  Many personal injury mediators are lawyers or retired judges.  However, mediators may also come from different backgrounds, such as being former insurance adjusters, business people or educators.  The parties and the mediator set up a convenient time to mediate the case.

Introduction

When the parties arrive at mediation, the mediator explains his or her role.  He or she explains the differences in a judge and a mediator.  The mediator does not impose decisions on the parties.  He or she cannot make the parties do anything.  The parties are free to agree to suggestions or not.  The parties retain control over the outcome of the case.

After explaining this important role, the mediator then explains that he or she is objective and does not represent the interests of either party.  He or she may summarize the facts of the case as presented in pre-mediation briefs or mediation statements.  He or she may also pinpoint the specific areas of contention noted in these materials.

After the mediator speaks, the parties may make a brief introductory statement about the accident, how it occurred and why they have not reached a settlement.

Negotiations

The parties may be separated during the next phase of mediation.  The mediator may go back and forth between the parties, getting a better sense of the strengths and weaknesses of each side.  The mediator relays information back and forth between the parties and may make suggestions on facilitating a compromise.  The mediator may also take settlement offers back and forth, often starting low with the insurance company’s offer but possibly moving higher during the course of mediation.

Agreement

If the parties do settle the case, they will have an agreement prepared that outlines the terms they agreed to.  The insurance company will usually ask the parties to sign a statement that they are releasing all claims in consideration of the settlement money.

Possible Solutions to Non-Compete Issues

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young man

Due to the competitive nature in many industries, many employers have employees sign non-compete agreements.  These agreements prohibit the employee from working for competitors or opening his or her own business in the same industry.  The requirements of these types of agreements are based on state law, but generally there must be reasonable limitations in relation to the scope, geography and time constraints.  Additionally, the employer must have something to protect that justifies the non-compete agreement.

When the employer and former employee are at odds over a non-compete agreement, they may use mediation as a way to resolve these differences.  Mediation can help the parties avoid costly litigation or the possibility that the outcome will not be as they intended.  Through mediation, the parties may consider possible solutions to their dispute, such as:

Eliminating the Agreement

The parties may decide that the agreement is no longer necessary.  The industry may have changed, or the agreement may no longer serve the intended purposes of the parties.  They may mutually agree not to honor the agreement.

Altering the Agreement

The employer may agree that the original agreement is broader than necessary.  As such, the parties may agree to make adjustments.  For example, the employer may alter the agreement to be valid for two years instead of three.  It may condense the geographic region that is covered so the former employee has the option to pursue new opportunities.

Reciprocal Referrals

The parties may agree to provide referrals to each other for jobs that they are not able to complete or that may not be appropriate for them.  This can allow them to have an ongoing, positive relationship rather than to be adversaries to each other.