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ADR of Cannabis Issues

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With more states legalizing cannabis for medicinal or recreational purposes, there are more cannabis legal issues that are arising. In the marijuana industry, there are a number of new business relationships that have developed in a short period of time, including distribution deals, partnerships and licensing relationships. Like in all other types of business dealings, the potential for disputes to arise between partners, competitors or parties working together is present. Conflict can arise in this context as well as in others, such as issues involving legal cannabis use and employment and housing matters.

Due to the new nature of this industry, many individuals and businesses are choosing to use ADR instead of litigating when troubles arise. Courts are often slow to change and may support traditional commercial businesses rather than individuals or businesses that they perceive as being invested in the “pot” frenzy. Another reason why individuals may steer clear of the court for resolution is because judges and juries might punish both parties when they do not like them. To avoid these negative possibilities, parties are increasingly adding mediation and arbitration clauses in their contracts.

Mediation involves the parties meeting with a third party neutral who hears both sides of the dispute and tries to help the parties reach a resolution. The mediator does not impose any type of decision on the parties. Instead, he or she helps the parties negotiate between themselves so that they can avoid court.

Arbitration puts the decision-making authority in the hands of a decision maker that the parties have selected. This helps them select someone who is not prejudiced against cannabis. The arbitrator may have additional subject matter expertise based on a history of creating licensing deals or litigating contract issues.

When Art and Mediation Collide

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Statue of Lady Justice in front of the Romer in Frankfurt - GermMediation continues to grow and evolve as more professionals realize the benefits of this process. The art world is only one of many applications of this process. Knowing about the possible applications of this method and how it works can help individuals, organizations and businesses involved with these issues.

Art Issues Handled in Mediation

The art industry may grapple with a number of different issues. One such issue involving this industry includes ownership disputes. This can occur when certain groups have been pillaged or had their work stolen and sold to the highest bidder. There may be restitution claims for artwork and other cultural misappropriation. Art associations may require mediation services in order to establish terms related to the acquisition of artwork, loans or deposits. Likewise, mediation may be helpful in the realm of licensing.

Mediation Process

Mediation is a voluntary process in which the parties agree to negotiate in good faith. With the help of a professional mediator, they are often able to resolve their claims in a positive manner. The mediator can be selected from a group of mediators that serve clients in the jurisdiction so that his or her expertise in the art world can stand out against other mediators. The focus of mediation is on getting the parties to reach an agreement by communicating directly with each other or through the mediator. These methods can help the parties get a better understanding of the parties’ positions and interests. Mediation allows parties to negotiate in a confidential manner while also controlling the procedure. The parties are not required to reach an agreement, but most cases do result in a settlement because the parties are able to realize the benefits of this process and in settling the case through a mutually satisfactory agreement.

Civil Rights Cases that Can Be Mediated

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Business HandshakeMediation is used in a number of different contexts, including employment law and other matters in which civil rights may be implicated. When the participants are willing to confront the issues together, they can often reach an agreeable resolution of the claim. Some of the claims that may be successfully mediated include:

Disability Accommodations

Employers and public accommodations that do not provide reasonable accommodations to individuals with disabilities may face civil rights violations. Mediation can help educate employers about possible ways that they may be able to adjust in order to keep a skilled employee at the company. Possible solutions may include changing the employee’s shift, adjusting job duties, providing appropriate tools or making other changes in the workplace. A compromise that parties may make in mediation is for the employer to provide training for managers on reasonable accommodation and leave policies.

Discrimination

Discrimination on the basis of sex, color, national origin, religion or race is prohibited by federal law. States may provide greater protections based on other protected characteristics. If a person is refused employment or accommodation due to protected factors, they may have a cognizable claim. Such liability can arise when an employer fails to hire, fails to train or fails to promote an employee because of these reasons. Likewise, if he or she terminates an employee for these reasons, the employee may have a civil rights claim.

Harassment

The employer generally has the responsibility to keep the workplace harassment-free. If the harassment is based on protected characteristics, the employer may be sued for creating a hostile work environment. Mediation may be able to help address problems associated with harassment. If the employee was forced to quit, part of the settlement may be to provide the employee with a job recommendation.

Retaliation

Even if an employer’s conduct was not discriminatory in nature, if it takes adverse action against an employer because he or she filed a complaint, the employer may be at the receiving end of a discrimination claim.

Determining When a Civil Rights Case Is Appropriate for Mediation

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handshakeDetermining When a Civil Rights Case Is Appropriate for Mediation

Mediation helps individuals, businesses and governmental agencies save time and money by having the parties come together in an attempt to reach an amicable resolution of their case. Determining whether a case is appropriate for mediation often depends on considering the temperament of the parties involved and the circumstances involved. Some specific factors that lean toward mediating a case include:

Parties have Differing Views on the Laws or Facts

When the dispute exists because there is a difference in opinion regarding the facts or laws, the case may be amenable to mediation. This process often serves as a reality check for the participants with the mediator explaining how the court has ruled in similar situations. He or she can also highlight the relative strength or weaknesses of cases.

When a Party Wants to Be Heard

Even if a case goes to litigation, the claimant may never feel that he or she had the opportunity to explain his or her own perspective. Mediation can be an effective way to allow the claimant to express his or her emotions and to receive empathy in response. Also, the party may want to talk to the other party directly, which can happen in mediation but not usually in litigation.

Poor Communication

In some situations, a negotiation is a logical conclusion to a case. However, the parties may simply be unable to communicate effectively with each other. Mediators are skilled professionals who use a variety of dispute resolution techniques to get the parties to express their feelings, identify their interests and find points of agreement. The parties may perceive their interests as incompatible, but a mediator may be able to change this mindset and help the parties align their interests.

Mediating Paternity Cases: Only the Beginning

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In many states, it is necessary for a father to first establish paternity before he will have any rights to the child.  This makes the paternity action the first of potentially many issues to be decided.  By mediating the paternity case rather than litigating it, the parties can begin in a spirit of cooperation and work toward making other decisions related to the child.

In mediation, the parties can discuss their respective positions in a calm and respectful manner.  At the same time, parents can use creative solutions that may not be available in court.  For example, if a man knows that he is not the biological father but would like to remain part of the child’s life, the parents may agree to paternity without requiring any type of DNA test to confirm parentage.  If the parties do not wish to have their case made public in front of others in the courtroom, mediation is a sensible alternative as the information shared during mediation is confidential.

After paternity is established, the parents may then discuss other topics related to the child, including their goals for his or her upbringing, the type of relationship that the parents want the child to have with each of them and how much time each parent will have with the child.  The parents may find that they are in agreement on many of these subjects once they focus on the child’s interests.  The parents may work out a parenting plan, custody arrangement or visitation schedule that suits both the needs of their child and their own professional and personal obligations.

Parents can also discuss child support by taking into consideration their incomes, the costs of daycare, medical insurance and other costs to raise the child.

Determining When to Mediate a Boat Accident Case

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Mediation has long been accepted as an effective method of resolving legal disputes. It has been used recently to help settle personal injury cases, including those that involve boat accidents. Mediation in boat accident cases may be initiated if the lawyers for the plaintiff and the insurance company have failed to reach an agreeable settlement, usually after several rounds of negotiations. When litigation seems likely, one of the parties may suggest mediation instead. In some states, mediation is required before a case can proceed through litigation.

Mediation may occur at the mediator’s office or in another neutral business setting. It commences with each party providing an opening statement about their side of the case, which they should communicate concisely and respectfully. The mediator explains the process of mediation and the various steps involved in the process. He or she explains the role of private caucuses which are private meetings between the mediator and one of the parties and his or her legal counsel. During these caucuses, the mediator gathers important information about the case and any offers that are being made to settle. He or she then goes to the other party with this information and offer in an attempt to guide the parties toward settlement.

The mediator’s role is important because he or she is a neutral party that does not legally represent either side. He or she can give an unbiased opinion about the case or a particular legal issue so that the parties may be better able to anticipate issues that a judge or jury may find with their side of the case. He or she may also discuss how similar issues were decided in court so that the parties have a realistic viewpoint on how the case may wind up. These matters often increase the likelihood that the parties will settle their claim. If the parties do reach an agreement, they sign a written settlement agreement that stands as an enforceable contract.

Mediation of Art Disputes

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Art disputes can often be complex in nature, often dealing with legal and non-legal issues that are interwoven. These disputes require a thorough understanding of every aspect that affects the dispute. Whether arising from a divorce case in which the ownership or value of the art is in question or dealing with disputes in the art industry, art disputes can often be sorted out during the course of mediation.

Mediation is a proper mechanism to handle disputes arising out of return and restitution, intellectual property, loan and deposit and acquisition disputes. It can also be used for issues involving digitalization, misappropriation, art being used as collateral in a financing transaction or donation issues. Art disputes may also involve special cultural distinctions. Parties involved in mediation get to choose the mediator that will be used and can look for someone with an art background or someone who is knowledgeable on art subjects.

During mediation, the intricacies of the art dispute can be addressed within the legal framework. Since mediation is a voluntary process, the parties can look to the law for guidance but are not bound by its parameters. For example, if a statute of limitations has passed, there may still be a remedy through mediation. At the same time, the parties can consider the legal issues and how a court may decide a particular issue while pursuing an amicable agreement.

The mediator tries to get the parties to see the situation from the other’s side and provides a realistic vision of how the case may eventually be resolved if the parties do not find a way to settle their dispute. The alternative is often much longer, public and expensive than mediation.