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Mediation is a non-adversarial process that is an alternative to litigating a matter. The process seeks to get the parties to focus on working out their legal issue to avoid a costly and time-consuming court battle.
Mediation has been used for years to help resolve a number of agricultural disputes. Cities, states and federal agencies have developed programs to amicably resolve agricultural matters. Agricultural mediation may be requested by either party in a dispute involving agricultural loans or other creditors. Agricultural credit issues, crop insurance, disputes regarding pesticides, compliance with farm programs and water drainage issues may be other disputes that lead to mediation. Agricultural disputes may involve neighbor disputes, landlord/tenant disputes, labor disputes or even divorce issues regarding the farmland.
Nearly any type of civil legal dispute involving agriculture can be mediated. The disposition of the parties is the factor that is most relevant as to whether mediation will be successful. Parties who can come together as respectable agents working to resolve a legal issue even if they start as polar opposites can still successfully participate in mediation as long as they are open to the process and willing to consider alternative ways to resolve the dispute.
The mediator is responsible for helping the parties communicate better. He or she may talk privately to each party alone and then filter information to the other side. He or she will keep the parties informed of their progress and buffer settlement offers between them. He or she will try to empathize with each party and show an understanding of the topic at hand while also communicating the potential pitfalls and weaknesses in that party’s case so that he or she has a realistic idea of his or her position so that each party can make an informed decision about whether the case should be settled.
Maritime law is often complex and deals with a variety of difficult topics. Parties may end up in a dispute regarding maritime contracts such as towage agreements or vessel charters. Mediation provides a peaceful way that parties can resolve such disputes.
Mediation is founded on the principle that parties can work out their own legal dilemmas – with the help of a third party. This third party is chosen by the parties, which already shows that the parties are able to agree to something since they must first agree on the mediator they select. Mediators have various backgrounds. Many are attorneys who split their time between mediation and litigation. Sometimes former judges serve as mediators. Non-attorneys can also serve as mediators, such as business contractors and other individuals who can bring specific subject matter knowledge to the table.
Mediation is a private and confidential process that promotes positive dialogue and understanding. At the heart of many mediation sessions is the emphasis on having empathy and understanding of the other side’s position. When each party is able to step back and evaluate the situation from the other’s perspective, the parties are often able to come together to reach a mutual agreement.
Because judges are bound by the laws and the legal process, there are often limited remedies that they can provide. While a judge must evaluate objective criteria, mediators can often analyze subjective input and provide ideas for more creative ways to resolve a problem. A mediator can point out the alternatives of not reaching a settlement through mediation, which often subjects both parties to potential liability and negative repercussions. This explanation of alternatives often helps the parties focus on their mutual interests and on the task of settling their dispute.
Most family law practitioners know that divorce is often not the ending. Post-divorce modification and enforcement actions can cause a case to continue on indefinitely. When a modification is being contemplated, there are several factors to consider, including:
Type of Modification
There may be a variety of modifications that may arise over time. An award of spousal support may need to be adjusted based on a disability or change in income. Child support may be increased or decreased due to change in family circumstances, income or expenses. Child custody or visitation may be modified because of a change in the child’s preferences, relocation or other circumstances.
Court’s Authority
Both parties must consider the authority of the court. State law may limit when a modification action can be heard by the court, such as once every three years unless there is a material change. Child custody decisions are based on the child’s best interests, which may evolve over time. The court may be unable to hear a case regarding an adjustment in child support if no significant changes have occurred.
Jurisdiction
Typically, the court that sets the original order retains jurisdiction of the case. However, if the parents move, the state may relinquish jurisdiction of the case and new rules could apply.
Desired Enforcement Mechanism
If one party is not complying with the court’s order, the other party may need to consider what type of enforcement action he or she is looking for. For example, if the party is refusing to pay child support, attempting to get that parent locked up may not serve the other party’s interests.
Agreement
In some cases, both parties may agree that a change may be necessary. Rather than having to fight through litigious hearing, the parties may agree to participate in mediation or arbitration so that they have a greater say over how their legal dispute is resolved. Both options provide substantial benefits.
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