When a family faces a wrongful death claim, the thought of spending additional time and resources to bring it to trial can end up being as heartbreaking as the claim.  After all—when you’ve already lost a loved one or significant other due to the fault of another person, it’s hard to put your trust in a judge and jury to make the situation more tolerable.  Beyond that, even if an award is given in your favor, the loss of a loved one isn’t something that can be easily compensated, especially if the compensation only comes at the end of a lengthy and expensive court battle.

That’s why mediation to resolve wrongful death claims is such a powerful tool in helping families cope with their loss without spending their life savings to do it.  In many cases involving wrongful death, the person or entity at fault knows that the fault will be theirs when the case is litigated, so offering to settle out of court is an attractive proposition.  Whether it is a wrongful death that is a result of medical malpractice, an automobile crash, a workplace accident, product liability or faulty construction, there are damages that you can pursue through wrongful death mediation that might put you in a better position than litigation ever could.

The most inviting aspect of settling in wrongful death mediation, at least for the person or business at fault, is generally the confidentiality of the mediation process versus the litigation process.  When a business seeks to maintain its reputation or a doctor doesn’t want to lose his or her current patients, wrongful death mediation becomes an attractive proposition.

In wrongful death mediation, your case will be heard by a neutral, third-party mediator who understands the laws relating to wrongful death and will be able to look at the evidence presented by both sides before suggesting a resolution to the dispute.

In creditors’ rights mediation, the creditor is able to make an attempt to work with the debtor to receive some form of payment toward a debt that is owed without going through the judicial system.  However, in some cases, particularly when the debtor is in over his/her head, these mediation proceedings might only result in pushing the debtor closer toward bankruptcy.

A good case in point is Stockton.  Last year, Stockton, California became the largest American city to ever declare bankruptcy.  This filing came on the heels of heated mediation attempts between Stockton’s creditors and the city’s officials to restructure hundreds of millions in debt—mediation that was unsuccessful due to the realization that there was no way to resolve the vast amount of debt the city owed without filing bankruptcy.

Bob Deis, the city manager for the City of Stockton, stated, “Unfortunately we have no comprehensive set of agreements with our creditors that would eliminate the deficit and avoid insolvency.  We think Chapter 9 protection is the only choice left.  If we get any agreements, those will be honored in Chapter 9.”

In a 6-1 vote, the City Council approved a bankruptcy budget to deal with 2013’s estimated $26 million dollar deficit.  Included in the budget were provisions to reduce payments for retiree medical benefits and suspend debt payments.

The deficit and resulting bankruptcy came on the heels of a hard-hit housing market crash that was difficult for Stockton to recover from, despite the city’s efforts through cutting wages and medical benefits, laying off one-fourth of its police officers, one-third of its fire staff, and 40 percent of the rest of its employees.

While Stockton’s mediation negotiations with its creditors had been underway from March until June due to AB 506, a recent California law that requires mediation before a city can file bankruptcy, there was simply no leverage room.  The city had done everything in its power to cut it expenses, short of stopping necessary public services, however the Recession that hit in 2008 had already done its irreparable damage.  In addition to the city-wide layoffs of public employees, Stockton has dealt with a nearly 20 percent unemployment rate and has experienced one of the highest foreclosure rates in the country.  Wells Fargo, one of its lenders, just repossessed some city parking lots and the future city hall.

Image courtesy of winnond/FreeDigitalPhotos.net

The majority of construction disputes are settled during mediation sessions rather than in court proceedings.  If you find yourself in need of mediation for a construction dispute, consider the following tips:

Choose Your Counsel Carefully

While the main goal of mediation is to settle the dispute in a manner that is agreeable to both parties, you want to be sure to choose counsel that will most benefit you.  If the defendant is a large corporation, you can guarantee that the defendant’s counsel will be knowledgeable of all aspects of the field of construction, and you want your counsel to be experienced as well.

Choose the Mediator Carefully

When choosing a mediator, you’ll also want someone who is experienced with mediation directly related to not only construction but also the specifics of your case.  In addition, look for the following characteristics in your mediator.

• Able to establish rapport with both parties to put everyone at ease
• Willing to see the matter through without eyeing the clock if being paid by the day
• Interested in the details of the case rather than indifferent
• Committed to resolving the dispute

If you’re allowing the defendant to choose the mediator in an effort to make mediation go more smoothly, be sure to thoroughly research the mediator before the session begins.

Be Prepared With Excellent Fact Witnesses

As with any hearing, witnesses can make or break a mediation session.  Especially in cases when counsel on both sides is evenly matched, the side with the best witnesses wins.  Make sure that your fact witnesses are well prepared and able to present the evidence for your side in a compelling and believable manner.

Be Brief During the Joint Session

As most mediation sessions begin with a joint session during which both parties will present their side of the dispute, be brief and to the point during your turn.  The basic facts are already known by each party and its counsel, and you will have ample opportunity to present all of your facts and proof later during the session.

The benefits of sports and entertainment mediation to solve disputes are extensive.  First and foremost, in an industry that struggles to maintain the privacy of its talent, the discretion provided by mediation as a form of Alternative Dispute Resolution (ADR) versus litigation can’t be overstated.  Second, in an industry where getting back to business as quickly as possible is absolutely necessary, and where patrons or consumers will lose interest if negotiations are stalled too long (meaning money lost on a grand scale) mediation provides a cost-effective solution that allows both sides involved in a conflict to reach a resolution as quickly as possible—in most cases, within a matter of days or weeks.

One of the most difficult issues faced by parties in conflict within the sports and entertainment industry is the different ways each party handles business and sets rules.  A talent agent has one way of dealing with things, while the talent has another.  A studio executive has one set of concerns, while the director or talent has an entirely different set.  This is why mediation with the help of a neutral, third party mediator can be such a useful tool in solving conflicts that might arise between the different groups involved in the sports and entertainment industry—from the executives, to the league owners, to the player and talent, to the technical and assistant crew that makes sure the show happens on time and without a hitch.

A mediator with extensive legal experience in the sports and entertainment industry understands how each facet works.  He or she is able to talk through issues and reframe the conflict in a way that helps each side understand more thoroughly.  A mediator is trained in helping everyone involved see the issue from each perspective, helping them to work together to reach a satisfactory conclusion for everyone involved.  After all, without the talent, the owners or executives wouldn’t be where they are, and vice versa.  It takes working together on a mutually agreeable solution for everyone involved to be happy with the result of the mediation process.

If you have been issued a DUI citation or accused of criminal misconduct, you might be able to avoid going to court and standing trial by participating in mediation.  This is especially true if it is your first offense.  Many states allow for DUI mediation or criminal mediation for most charges if a party motions for it and the judge agrees to the motion.  When a judge chooses a mediator or refers a case to a mediator, usually this is all that is required to move the case from litigation to mediation.  However, in most instances, consent is required from all parties involved when a party motions for criminal or DUI mediation.

There are certain criminal offenses that cannot be handled through mediation and these vary state by state.  Most states do not allow mediation in place of litigation if the criminal charge is for deliberate homicide, mitigated deliberate homicide, intimidation, partner family member assault, assault on a minor, stalking, aggravated kidnapping, sex crimes, endangering the welfare of a minor, sexual abuse of children, and ritual abuse of a minor.

Some criminal charges that are commonly referred to mediation include disorderly conduct, public intoxication, criminal domestic violence, property offenses (such as shoplifting or petit larceny), simple assault, and simple possession of marijuana.

If a plea bargain is the result of DUI or criminal mediation, a judge does not necessary have to agree with and approve the recommended sentence.  However, most judges will agree with the result of the mediation process if the accused is compliant during the process and a satisfactory conclusion is reached in the mediation process.

In any discipline, there are several approaches to take to arrive at the same conclusion.  Mediation is no different and has been practiced and taught in various styles.  In the belief that their way is the best way, some mediators might be tempted to make the accusation that a certain approach is not “real” mediation.  The truth is that each style of mediation comes with its own pros and cons—with mediators likely to express strong opinions about their own personal style and why they don’t prefer others.

Facilitative Mediation
Facilitative mediation is likely the type of mediation that most practitioners know well.  This traditional style of mediation was taught and practiced in the 1960s and 1970s and is still taught today in many programs and schools of thought.  In this type of mediation, the process is structured in such a way that the mediator assists the parties by asking questions; at the same time, he or she validates and normalizes the points of view of the parties in conflict.  However, it is still up to the parties in conflict to arrive at a successful and fair conclusion to the conflict.  In facilitative mediation, the mediator avoids making any recommendations or giving his or her advice, believing that the role of the mediator is to facilitate a resolution but not necessarily force it.  Put simply, the mediator allows the parties to be in complete control of the outcome.

Evaluative Mediation
Evaluative mediation as a style of mediation was developed out of court-mandated mediation and is a process that is patterned after the typical settlements held by judges.  A mediator who practices evaluative mediation helps the parties in conflict arrive at a resolution by showing them the weaknesses in their case and evaluating what a judge or jury would be likely to decide if the case were brought to litigation.  Focusing on legal rights of the parties instead of “fairness”, an evaluative mediator will likely meet with each party and their attorney in separate meetings.   The process of evaluative mediation usually involves a point-by-point evaluation of cost vs. benefits in deciding to pursue legal action in a case, and because of this, most evaluative mediators are attorneys.

Transformative Mediation
This newer concept in the field of mediation was coined in 1994 by Folger and Bush in their book The Promise of Mediation.  As a form of facilitative mediation, transformative mediation focuses on the values of “empowerment” and “recognition” as keywords, and parties meet together because it is only through meeting face-to-face that the concept of “recognition” can truly happen.  As with facilitative mediation, transformative mediation is structured so that the parties are in control of the outcome and the mediator is a facilitator to this conclusion.

Pros and Cons of Each Style
It would seem that in general, mediators follow a continuum from transformative to facilitative to evaluative mediation, depending on the situation and the needs of the parties in conflict.  However, there are some mediators who are convinced that one style of mediation is more true to the core philosophy and purpose of mediation, and will rely on it solely for their mediation practice.

Those who practice transformative mediation solely often claim that mediators who use the facilitative and evaluative approaches put too much pressure on clients to reach a resolution.  They firmly believe that in the process of mediation, the clients should be the ones who decide whether they really want a resolution, not the mediator.  However, those who practice evaluative mediation take issue with the fact that transformative and facilitative mediation take too long to reach a satisfactory conclusion.

Mediation as a form of dispute resolution relating to intellectual property has become one of the easiest and most effective ways to handle intellectual property disputes. Since we now live what is known as the “Information Age,” a time when you can find out almost any piece of information (even classified information, e.g. WikiLeaks) by searching online, Intellectual property has moved to the forefront of legal disagreements.  Intellectual property is defined as “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” Much money is spent on technological advances, patented products, brand images, research and development, so it is in a company’s best interest to protect their intellectual property at all costs.

When intellectual property is stolen or otherwise compromised, companies and individuals who stand to lose reputation and money are often forced to seek legal help to maintain their interest, resulting in lengthy and costly court battles that can take years to settle.  This kind of drawn-out process is unappealing, and in tough economic times, often beyond the financial capability of many small businesses who need to protect their intellectual property in order to build their company successfully.

That’s why mediation has proven to be so successful in helping solve intellectual property disputes in a low-cost, efficient manner.  Mediators are neutral third party negotiators who will be able to listen to both “sides” of the dispute and look at the situation at hand.  After allowing each party to tell their position, the mediator or mediators are then able to help the parties negotiate a legally binding resolution that takes both parties’ concerns into consideration.  This ensures that the matter is handled with the utmost fairness, and encourages compromise in order to reach a solution that is acceptable to everyone involved.