Category Archives: Whats Popular

Considering Alternative Dispute Resolution for Shareholder Disputes

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Shareholder disputes are far too common and are often caused by a desire for one or more shareholders who want to terminate the shareholder relationship.  However, they can also arise because shareholders disagree how a business is being run or because shareholders fear liability on the part of other shareholders that they believe is illegal or fraudulent.  Shareholders may allege misconduct such as misappropriation, breach of fiduciary duty or breach of the shareholder agreement.

Shareholders may consider mediation to help resolve disputes of this nature.  Mediation uses an impartial third party to help resolve the case.  This avoids the publicity of a trial and the dissemination of private information to the public.  Parties can choose their mediator, so they may select someone who is experienced in the same industry that the shareholders are a part of.  Mediation allows both sides to communicate their perspective and to express their interests. The mediator attempts to bridge the communication gaps between the parties while offering valuable feedback regarding the merits of different claims or defenses.  The mediator may provide suggestions on ways to potentially settle the claim and will encourage both parties to come up with their own creative solutions.  This form of ADR is particularly well-suited to shareholder disputes because it is non-adversarial in nature, allowing the parties to reach an amicable solution and maintain their relationship.

For other cases, shareholders may consider arbitration as a way to resolve the dispute.  Arbitration is an abbreviated form of litigation.  However, the parties choose the decision maker instead of having a judge or jury.  Arbitration can be binding by nature and can only be appealed on limited grounds.  The arbitrator can issue a binding decision that all parties must adhere to.  At the same time, arbitration offers a less expensive and faster resolution than would likely be available through litigation

Handling Negative Reviews Online

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Today, a dissatisfied customer can easily post a scathing review online and damage an attorney’s professional reputation by a mere click of a mouse. There are several ways that an attorney can address negative reviews in a professional manner, including:

Flagging the Review

In some situations, the review may not be accurate and may actually be a form of sabotage from a disgruntled individual. It is not uncommon for competitors to post fake reviews in an attempt to garner more business for themselves. In other situations, the review may be posted for the wrong attorney. Most online review sites have a dispute resolution protocol in which the person who is being reviewed can flag it as inappropriate. Flagging the review causes the review to be temporarily removed during which time the site sends the person who posted the review to consider rewriting the review within a certain period of time. If the reviewer does not respond within the given timeframe, the review is permanently reviewed. A potential drawback of this option is that the person who posted the review may see it as provocation and may write an even worse review.

Respond to the Review

One way that businesses respond to negative reviews is by showing the public their professionalism. By carefully considering the review and discovering its source, the attorney has the opportunity to demonstrate his or her character and commitment to legal service. It is important for the attorney to carefully draft a response and to have at least two trusted individuals read over the review before submitting it. The attorney should also demonstrate empathy in the response. Attorneys must also be mindful of attorney/client privilege and not reveal any confidential information. An attorney may also want to publicly offer to speak to the client in private in order to resolve the problem.

Don’t Respond

Probably the most difficult option for an attorney is simply not to respond. An attorney who feels attacked will want to defend his or her professional reputation. However, sometimes the best response may be no response. If the reviewer is someone who may be dangerous or who may lash out by posting additional negative reviews by using fake names may not be able to be reasoned with. Additionally, an emotionally-wrought review that lodges many accusations may not appear credible to others and may not be affecting the practice.

Understanding the Commercial Foreclosure Process

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The commercial foreclosure process is very similar to a residential foreclosure. If the commercial borrower defaults on the loan, the lender may take steps to reclaim the property. Default is often triggered by non-payment, but it could also be due to some violation of the mortgage agreement such as failing to maintain insurance on the property or subleasing the property against the instructions on the mortgage documents. A foreclosure in the commercial setting may be conducted through the judicial or nonjudicial process.

The nonjudicial process is sometimes used when the mortgage documents contain a provision permitting this act. A power of sale provision allows a trustee to sell the property without being supervised by the court. The borrower is entitled to notice of the sale and may have a certain amount of time to cure the default. In contrast, a judicial commercial foreclosure is handled through the court system and is initiated with a lawsuit against the borrower asking for the court to provide a foreclosure and order to sell the property. Each defendant is served with a copy of the complaint and must provide an answer to avoid a default judgment. If the borrower does not prevail in the action, the lender secures a judgment and order of sale and provides notice to the borrower of when the property will be sold.

The foreclosure process is often a long and expensive one, often resulting in net losses for all parties involved. The borrower loses the funds he or she invested in the property. The lender may receive less money for the sale of the property than the original note was for. Even if the lender can pursue a deficiency judgment against the borrower, the borrower may go bankrupt due to not having a business location to work out of. Arbitration and mediation options provide alternatives to the foreclosure process.

Uncovering Client Needs through Mediating Attorneys’ Fees Disputes

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Attorneys’ fees disputes are so common that many states and bar associations provide free or low-cost mediation services to help attorneys and their clients resolve disputes regarding legal fees.  The mediation process is voluntary and can help the parties resolve their dispute without need for any further legal action.

While fee disputes may appear to be about money, there are often other issues lurking around such disputes.  A client may not have been satisfied with the attorney’s services or felt that he or she was disrespected in some way.  He or she may have had an impression of the cost of litigation and was then surprised by a large legal bill.

Both parties have the possibility of benefiting from mediation.  This gives the parties the opportunity to each speak their peace.  A client may not have realized some of the things that he or she would be charged for and an attorney may reference the fee agreement that spelled out such charges.  A client may feel that an attorney did not sufficiently communicating about progress in the case and associated costs.  In some instances, the client may have discharged the attorney and feels like the fee is undeserved.  A lawyer can explain his or her point of review in a respectful manner and potentially sidestep any larger concerns, such as an ethical complaint being made against him or her.

Mediation also provides for the possibility of the parties coming up with their own solution.  This may include the lawyer writing off certain charges or offering a discount if the bill is particularly large.  It could also mean the client offering to make monthly payments on the amount owed rather than facing legal action by his or her own attorney.  A significant benefit of mediation is the ability for the parties to reach their own reasonable solutions.

The Difficulties Involved in Negligence Cases

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Negligence cases are some of the most commonly tried cases.  A car accident, mistake made by a doctor or a defective product can quickly lead to litigation.  However, ADR is often much better at resolving cases involving negligence.

In negligence cases, the plaintiff has the burden of demonstrating the elements of the case.  These elements include showing that the defendant breached a duty of care that it owed to the plaintiff, this breach caused the plaintiff to suffer some harm and this harm resulted in some type of measurable damage to the plaintiff.  In some cases, the first element is in question.  The defendant and the plaintiff may be complete strangers to each other.  In some cases, a certain degree of care is expected, such as all motorists obeying traffic laws.  However, in other cases, the duty of the defendant is not as clear.  He or she may have owed very little duty to the victim who was later injured.

Causation can also be difficult to prove.  If the plaintiff has a pre-existing injury, it may be argued that the plaintiff’s injuries were already in existence and no new injuries occurred.  Sometimes more than one defendant is involved in a negligence case, and the plaintiff may be unclear on which party’s conduct resulted in his or her injuries.  Defendants may try to minimize the potential recovery of the plaintiff by alleging that the injuries are exaggerated.

Negligence cases can also be difficult for defendants.  Juries often have little sympathy for people who have acted carelessly or businesses that try to shy away from their responsibility.  To minimize the potential for a bad outcome, many parties involved in a negligence case decide to settle their claim, often with the help of a trained mediator who can explain the risks of litigation.

Using Mediation in the Medical Negligence Context

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Medical negligence cases are often complex in nature, typically requiring the testimony of a medical expert to substantiate the plaintiff’s claims.  The legal and factual issues are often complex.  These factors mean that there may be additional issues in dispute, which tends to make the case longer, more complicated or more expensive for both parties involved in the process.

Another complication of medical negligence cases is that multiple defendants may be part of the case.  This means that each defendant may be represented by his or her own attorney that is looking after only his or her own client’s interests.  In this manner, the defendants may argue with each other and attack each other, which may only drive up the recovery for the plaintiff.

For parties that want to minimize the potential for a negative outcome, mediation is a reasonable solution.  Mediation can help minimize the costs associated with such lawsuits for both parties.  When such hefty costs are involved, the stakes are greater.  However, mediation can help level the playing field.  It may also allow a defendant to offer more in a potential settlement since it will not have to shell out as much in legal fees.

Additionally, when multiple defendants are part of the case, it can be difficult to apportion fault between the defendants.  A jury may not be sympathetic to a particular defendant and find this defendant primarily liable for the injuries.  In mediation, the parties can attempt to reach a formula that apportions the guilt in an equal or fairer way.

Mediation provides an opportunity for the parties to come together and resolve their case on their own terms.  This may include a formal apology by any defendant that may have made an error that resulted in the plaintiff’s injuries.  It may also provide a settlement figure that all of the parties can agree to and live with.

Common Family LGBT Issues Handled in Mediation

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LGBT couples face many of the same family law issues as other groups.  However, the needs of LGBT individuals may be different or sensitivity may be necessary to best provide for them.  Mediation allows the parties to retain their own decision-making power and avoid having to battle issues out in court.  LGBT individuals may be afraid that negative social stigmas may affect the legal outcome of their case.  In other situations, the law has not kept up with a changing society, providing potentially unjust results.

Some of the most common family law issues the LGBT community faces include:

Cohabitation Agreements

Many same sex partners live together without the bond of marriage.  Until recently, many states outlawed marriages between individuals of the same sex.  This makes cohabitation agreements very important for the community.  These agreements set out the property rights of each party and the expectations of the parties.  Through respectful negotiation, the parties can often walk away from mediation with a legally-binding agreement regarding their cohabitation.

Child Custody Matters

Child custody matters are often difficult in LGBT cases because one parent may have a genetic link to a child and one may not.  Additionally, LGBT individuals may wish to adopt the child of their partner who was born out of a previous relationship.  Agreements may need to be established to specify the rights and duties involved of parents who are going through artificial insemination.  Mediation can help clarify these issues and provide an objective method of resolving such issues.

Divorce

LGBT individuals may be at risk of unfair decisions during divorce.  If their marriage has not been considered legal for long, there may be important property implications.  Additionally, a same-sex spouse may find himself or herself cheated out of pension funds or retirement funds that would be divided in other situations.  Mediation can develop a fair and reasonable agreement at a reasonable cost.