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New Approach: Using Mediation to Resolve Toxic Tort Claims

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When contaminants are released into the air, water or soil, a large number of people may be affected. These legal cases are often difficult because many victims may be impacted but to varying degrees. Some people may have only suffered property damage while others may have suffered debilitating illnesses or even death. Using mediation to resolve these claims is often a prudent decision for all parties involved.

If litigated, cases of this nature often take the form of a class action. Such claims can be extremely long, potentially outlasting the lives of some of the parties involved. Further delays may be experienced by the parties as they go through the process of certifying the class. The costs of litigating these cases can often be exorbitant, potentially financially crippling the defendant and leaving many of the plaintiffs with little recovery after legal fees and costs.

Mediation tends to provide a more efficient manner to resolve such claims. Years of litigation can be condensed into one or a few mediation sessions.  Mediation also allows an individualized approach. Key claimants can determine how different victims will be compensated. For example, a tiered approach may be agreed upon, allowing for greater compensation to individuals who were impacted to a greater extent. Additionally, individualized solutions regarding compensation payments may also be determined, such as providing lump-sum payments to some claimants and periodic payments to others. In mediation, specific criteria may also be used to determine the level of damages that a claimant is entitled to. This process may result in some claimants being required to submit medical documentation that supported their claim for damages; while others may receive automatic payment based on the defendant’s admission that contamination occurred within a certain radius.

The Role of a Mediator in Unfair Competition Cases

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Allegations of unfair competition arise when competitors believe that they are subject to disadvantages that their counterparts are not subjected to. Other cases can arise when one competitor believes another intentionally took steps to harm it so that it would not be able to compete on the same level. In order to avoid the negative publicity of an unfair competition claim, some competitors may agree to mediate their claims.

The mediator plays a special role in such cases. His or her experience in commercial law or related cases can serve as an important role to assess the relative strengths and weaknesses of a case. This neutrality coupled with experience can help the parties realize the potential risks of proceeding with litigation and the advantages of using mediation to settle the dispute.

The mediator also helps to facilitate communication between the parties. Sometimes in such cases, the parties may be so at odds that they may not be able to have any type of peaceful conversation. The mediator can separate the parties and talk to each party one on one. This tactic allows the parties to fully express their side of the story, as well as to comment on what they believe to be the strengths of the case. The mediator can use this information to become better informed of the case and its likely outcome. At the same time, the mediator only shares information that the party says is fine to share with the other party, maintaining confidentiality when it is needed or giving the other side a glimpse into damaging evidence when warranted.

The mediator can also help the parties come up with potential solutions to their problems. He or she may deliver creative ideas that can get the parties to tailor a solution based on their particular business interests.

Types of Cases that Can Be Handled Through Elder Law Mediation

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Nearly any type of elder law case can be effectively handled through mediation so long as the parties participate in good faith and have an open mind during the process.  Some of the most common elder law disputes handled through mediation include:

Residence Decisions

Sometimes a concerned child or family member will see an elderly relative struggle with certain functions and take this as a sign that the individual can no longer live independently.  However, a parent or other individual may still be very capable of taking care of most life functions.  A full range of possibilities exists, including moving in with a child, having a part-time caregiver come in to assist the individual, transferring to an assisted living facility or using available services for assistance and support.

Financial Issues

Another issue that is often disputed is how money will be spent.  An elderly individual may require more financial resources to provide for medical needs.  A caregiver may also need to be paid.  Individuals concerned over the financial aspect of elder care may have very differing opinions on how to tackle such issues.  One of the major decisions that may need to be made is whether the elderly individual should sell his or her home.  Many individuals are reluctant to take this step because it feels like losing freedom.  However, the opposite is often true.  A mediator can help the parties discuss possible solutions.

Adult Siblings

One of the most contentious types of elder law cases involves conflicts between adult siblings.  These parties may disagree about what is best for the elderly parent or relative, including who should serve as a guardian, have power of attorney or be an executor.  These issues often involve complicated family dynamics that a mediator can help maneuver around during mediation.

Why Should I Mediate a Wrongful Death Claim?

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A wrongful death case arises when a surviving family member or loved one brings a lawsuit against a party that the plaintiff believes was responsible for the death.  Most often, this type of lawsuit arises from negligent actions.  Mediation provides an effective forum to seek compensation for the loss of a loved one without having to go through the ordeal of litigation.

Emotions

A wrongful death case can be one of the most heart-wrenching cases to litigate.  Often, victims feel victimized twice: once by the actual loss of a loved one and second by the turmoil involved in litigation.  In litigation, the defendant denies any accountability for the death.  Additionally, cross-examination can be a grueling experience in which other parties or even the victim is blamed for the death.

Mediation provides a mechanism in which the surviving family member can share the feelings of anger, resentment, sadness, depression and confusion in a safe environment.  Mediators are specially trained to handle conflict and difficult situations.  Often, talking through this information with a mediator can be cathartic.  It can also help the victim focus on objective goals rather than on the raw emotions.  Although the defendant may have different emotions, these can also be addressed in mediation, providing a calmer and comforting experience for all parties involved.

Non-Binding

One surprising benefit of mediation in this context is that it is non-binding.  Either party can simply decide to walk away and continue with litigation.  This allows the parties to keep power in the situation and avoid being coerced into an agreement with which they are not satisfied.  Both parties must agree to be bound to any settlement agreement.

Certainty

A jury may provide a substantial economic award to the victim’s family to the defendant’s detriment.  It can also decide that the defendant was not at all at fault for the death.  The parties can both avoid uncertainty by reaching a settlement agreement.

Impact of Paternity on Other Decisions

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A paternity case often precedes other legal filings. In the case of a father wanting to disprove paternity, this action may come before a father’s action to recover support already paid or a divorce filing. For a father who wants to acknowledge paternity, the action may lead into other requests from the court, including:

Child Support

Once a father’s identity is revealed, he may then be pursued for child support from the mother or guardian of the child. Child support guidelines help determine the proper amount of support that should be paid. In many jurisdictions, child support is determined on a pro rata basis in which both parents incomes are added together and the noncustodial parent is then ordered to pay the amount of support based on his or her proportionate share of the total income.

Visitation

In states that observe visitation agreements, a paternity action is usually a precursor to a request to receive visitation rights. Most states treat child support separate from visitation agreements. This means that a father does not necessarily have the right to visitation by virtue of paying child support. Likewise, a father who does have visitation rights to his child usually cannot be denied visitation by the mother simply for not paying child support.

Parenting Plan

Many jurisdictions use parenting plans when a child’s parents are no longer together. Parenting plans are usually drafted after mediation or negotiations between the parties and their legal representatives. Jurisdictions prefer this method so that parents can help reach an agreement regarding their children without the court’s intervention. Parenting plans may include information about visitation dates, holiday sharing time, contact through phone and mail and other such matters related to the time with parents. Additionally, parenting plans may include information about school, education, religion, extracurricular activities and the child’s health.

What Is Land Use?

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Land use refers to zoning laws and other laws that regulate the use and development of real property.  Zoning is the most common form of regulation of this area and is utilized by municipalities in order to control how property is maintained and developed.  Zoning laws usually indicate which areas of the municipality that will be considered residential, commercial or industrial areas.  Such laws help to protect the value of properties and ensure that areas are optimized for their intended use.

Zoning laws also help protect the aesthetics and safety of buildings.  They may impose certain height restrictions, specify how many feet a building must be from a roadway, limit the number of rooms or buildings within a certain area, specify the types of buildings permitted in a specific area or designate certain locations for power lines.  Many municipalities utilize a master plan to help guide decisions regarding future development.

Another common source of land use is based on rights and interests of other parties.  For example, an easement is a limited right for a person to gain legal access to a portion of another person’s property.  This may be granted through a conveyance, or it may be implied by law, such as if a property is otherwise landlocked and the owners cannot have public access without crossing the land.  An easement may also exist to provide a benefit to the public, such as requiring a property owner not to build on a portion of the land so that the public can access green space or a waterway.

Land use can also involve restrictive covenants.  These are provisions included in a deed that limit a property’s use or restrict its use, such as only allowing the property to be used for residential purposes, to maintain a specific aesthetic quality and consistency with a community development or to establish a setback line.

Differences between the Appellate Process and the Trial Process

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When an individual loses a case, he or she may make the decision to appeal it.  Many individuals view this as a second chance to win.  However, the appellate process is very different from the trial process.

One way that the appellate process is different is that it usually does not involve the physical presence of a lawyer like the trial process does.  Many appeals are decided by the review of a written brief only.  If the court accepts a request for oral argument, an attorney may then be involved.  Rather than presenting a case, though, the attorney instead responds to a series of questions by a judge or panel of judges.  The other side does the same.  A trial attorney is often physically present for the trial, as well as during multiple motions made and hearings scheduled before the trial.  In this sense, it is more important that an appellate attorney be able to have strong written communication skills and an ability to think on his or her feet, as opposed to the charm that may make a successful trial attorney.

Another important distinction between trial and appellate cases is the type of information that is shared with the court.  In an appellate case, the court reviews the official record.  This in contrast to a trial attorney presenting evidence during the trial.  The appellate attorney does not present evidence like he or she does during the trial process.  Instead, the appellate attorney focuses on showing that the trial court made some type of error.  He or she cites to such errors that are part of the official record.

Whereas a trial court often includes a jury to decide the case, an appellate court’s decisions are only reached by a judge or panel of judges.