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Mediation of Partnership Disputes

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When business partners are on the brink of splitting up, the consequences are often significant. If the business dissolves, employees may lose their jobs. Creditors may go unpaid. The goodwill of the business can be at stake. Legal fees may mount during this time. In order to prevent dissolution or sometimes to minimize the hardship that occurs during this process, the partners may wish to mediate their partnership dispute.

Many business partnerships struggle because they fail to properly plan for the future. With a busy business, partners often focus on running the business, employment disputes, marketing and other aspects of the business. This takes away their focus from the partnership. When things are going well for the business, they may overlook planning. However, when conflict arises, the partners may not be equipped to deal with it effectively.

In order to stop disastrous results, it is important to implement conflict prevention with partners. It is important that the parties define expectations and agree on the proper way to deal with conflicts as they arise. It is often critical to employ the mediation process as early as possible when they are getting along better than after they have become adversaries.

Mediation allows the parties to sit down in a neutral setting and truly focus on their partnership. They are often able to work out difficult problems and resolve interpersonal issues. Mediators are trained at resolving conflict through expressive communication techniques. The mediator can point out the negative possibilities that are associated with not settling the dispute, such as increased legal expenses, loss of employee morale and allowing a judge to decide the fate of the business. With these guidelines, the parties are often able to center their focus on a peaceful resolution of their dispute while retaining the power to make decisions important to their business.

Opting for the Mediation of Trusts and Estates Disputes

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Trusts and estates disputes may arise for a number of reasons.  A will may not be clear regarding which person receives what under the will.  When assets are said to be divided among the children, this can create conflict as different items have different significance to the children.  Because people tend to want to avoid conversations about death, will may not provide adequate details and people may not talk to their children or other beneficiaries before passing.  This can make some parties believe that the testator was influenced by someone who benefited greater by the will.  This can lead to a will contest in many situations.

When such a contest is apparent, the parties may choose to go through mediation to prevent litigation.  Mediators are skilled professionals who are experienced with dealing with complicated family dynamics, including sibling rivalry or the involvement of in-laws.  They use this experience to gain trust in each individual party.  They explain that the process of mediation allows the parties to retain the power to make decisions that are important to them rather than handing over this power to a judge or jury.

A mediator funnels information and settlement offers back and forth between the parties.  During this time, the mediator will get to realize the parties’ interests better and use this information to offer suggestions about how these interests can be met.  In cases involving wills, the issue may be more about wanting to feel equally loved by the decedent or wanting to keep an item of greater emotional value that really connects with him or her.  Mediation can allow for flexible compromises, such as letting one sibling have possession of a painting for a number of years and then passing it to the next sibling for several years.  This process allows the parties to create customized solutions to their problems.

Exploring Options through Guardianship Mediation

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Some cases are better suited for mediation than litigation.  Cases involving elderly guardianship appointments often fall within this classification.  Guardianship cases often involve private matters and complex family dynamics that may be better handled with professional assistance.

Mediation is a private process in which the parties involved in a dispute work together with a third-party neutral who encourages them to communicate and come up with unique solutions to resolve the problem.  This process is often much more open than litigation since the parties can talk to each other directly rather than through the questioning and cross-examining conducted by lawyers.  If a party is concerned about how someone has handled medical issues or finances, these concerns can be addressed with the process of mediation.  In comparison, these are simply accusations that can be lodged in litigation that may not be adequately explained through the process of litigation.  While mediation provides an open forum for the parties to discuss, it also preserves the privacy of the parties by not having them air its dirty laundry on a public record.

One of the common issues that plague guardianship cases is miscommunication.  Due to difficult family dynamics, assumptions or misgivings, communication may not be occurring with the parties.  Mediation provides an opportunity for the parties to participate and engage in open dialogue.  It also allows them a chance to work together toward a mutual goal, such as protecting the health or finances of a loved one.

If a case proceeds to trial, the judge may make one of the participants the guardian of the ward.  However, with the process of mediation, the parties can establish creative solutions that work best for the family, such as dividing responsibilities, financial commitments and logistical assurances that may not be available through a resolution reached in court.

Reasons to Consider ADR for Professional Liability Cases

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Professional liability cases involve claims that someone has violated their professional duty.  This may be a lawyer who violated confidentiality requirements, a physician who committed medical malpractice, an accountant who provided bad information or a financial advisor who violated a fiduciary duty, among others.  When such issues arise, a lawsuit may be imminent.  However, there are alternatives available, namely through the use of ADR solutions.

Many forms of ADR are voluntary.  However, some parties may have agreed to a form of alternative dispute resolution such as mediation or arbitration through a contract agreement that was signed prior to any conflict actually arising.  ADR options are also confidential in nature, allowing the parties to communicate together or have their issues resolved without the concern of the public knowing the specific details involved in the case.

Another key aspect of ADR is that the parties reserve more power in the process.  For example, in mediation, the parties only get to decide how to resolve the claim.  The mediator is a person who facilitates communication but has no power to decide the facts or issues like a judge would.  While in arbitration the arbitrator does have such deciding power, he or she is personally selected as the factfinder by the parties.  Additionally, the parties can agree to narrow the issues and establish guidelines about discovery that ultimately help make the process faster and more affordable.

Decisions reached in ADR are usually firmer than those made by a court and that are subject to appeal.  Mediation agreements are binding agreements by the parties.  Except for limited circumstances, a binding arbitration agreement cannot usually be appealed.  This helps create greater finality for the decision reached in arbitration.

Legal Malpractice Considerations in Mediation

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Legal malpractice cases are often quite complex because they involve a case within another case.  Such claims often arise when the underlying case was not resolved in the manner that the client wanted, leading him or her to speculate on the possibility of improper action on the part of the attorney whom they hired.  In order to avoid some of the negative aspects associated with suing someone’s own lawyer, mediation can be used in place of litigation.

One of the complexities of a legal malpractice case is that the plaintiff has the burden of showing that he or she would have been successful with the underlying case had the lawyer not made the alleged mistake.  Since much of the law depends on a subjective analysis of the evidence, this can be a difficult burden to demonstrate.

Another complexity involved in legal malpractice cases is that an insurance carrier may be involved.  A carrier may be eager to settle the case if it believes that the cost to defend the case may be greater than the cost to resolve the case through mediation.  However, this also requires that the legal malpractice carrier send a representative who can provide settlement authority on behalf of the insurance company.

The stakes involved in legal malpractice cases are often high, including having the lawyer’s reputation on the line.  Additionally, the case may involve confidential communications.  As such, a malpractice case may involve sensitive information.  Mediation is a collaborative process that tries to move away from making inflammatory statements about each other that will simply provoke each other and instead focuses on resolving the matter in a peaceful manner through open dialogue.  If successful, the process often results in a faster and more affordable resolution than litigation provides.

Importance of Using Mediation in a Professional Liability Case

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When a person has a legal dispute with a profession who he or she hired and the dispute is regarding the professional’s job performance, a professional liability case may arise. This may occur when a lawyer loses a case for a client, an accountant makes an error on a financial form or an architect’s plans for a building do not encapsulate necessary safety features, as a few examples. When problems of this nature arise, the professional’s reputation and livelihood are at stake.

Dissatisfied clients may wish to pursue action against the professional’s license. However, this approach may not provide the results that will best serve their interests or the professionals’ interests. Through ADR, clients and the professionals whom they hire are often able to work together as a team to reach a solution that is tailored to meet their interests.

Mediation is a confidential process, so this allows the client and professional to speak more candidly without being afraid that their words will be used against them at a later proceeding. Often in professional liability cases, the underlying problem is the result of a miscommunication. Mediation allows the parties to talk through their problem to see how it arose and what contributed to it. Then, they can work together toward a resolution.

Mediation provides benefits to both parties and since it is based on collaboration, the parties are often able to maintain a relationship after a resolution is reached. Additionally, the parties are usually able to reach a solution faster than if they pursue their claim through another channel. This can allow the professional to proceed without worrying about his or her professional standing and for the client to be able to move forward. Additionally, the agreement that is reached is tailored to the specifics of the case and the parties’ interests, providing a more customized approach.

Family Law Issues Facing the LGBT Community

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While the United States Supreme Court legalized gay marriage across the country recently in 2015, many states have recognized this union in some form for many more years.  This allowed different jurisdictions to recognize a relationship in one area but not in another area.  While this has changed, the LGBT community still faces a number of complex family law issues.

In some cases, court clerks and religious leaders have refused to grant marriages to same-sex couples or provide them with a marriage certificate.  Some jurisdictions have established local ordinances to provide specific punishments to individuals who refuse to obey the law.  New legislation is also being considered to help tackle these issues.

Another legal issue plaguing the LGBT community is regarding their parental rights.  Since same-sex couples cannot have children in the traditional sense, many couples make alternative arrangements.  This often results in one parent being the known, biological parent.  Some states still have laws on the books that only allow a child to have one natural father and one natural mother, potentially leaving the other parent with no rights.

For many years, LGBT individuals cohabited without having legal recognition of their relationship status.  Many still continue to live together without being married.  In the event that the relationship dissolves, LGBT individuals may find that their property is at risk as courts are generally unwilling to use divorce processes in determining the identity of a couple’s property and its owner.

Rather than keeping themselves in these precarious legal positions, many LGBT individuals seek the assistance of lawyers.  These types of issues can often be resolved through mediation in which the parties leave the mediation session with an enforceable agreement.  Mediation focuses on providing the parties with an opportunity to cooperate and customize an agreement that is matched to their particular needs.