Anatomy of a Title Insurance Case in Mediation

Posted on by

People purchase title insurance to ensure that they receive all of the legal benefits to which they are entitled by purchasing real property. However, legal threats may arise if a problem is later discovered with the title. Once the parties agree to mediation, the following process is initiated:

Review of the Insurance Policy

The third-party neutral, the mediator, will want to read the title insurance policy that is in dispute. He or she can evaluate the clear meaning of the contract terms or determine that there is some ambiguity in the contract language. Both parties should state their opinion about the particular provisions that are at issue and why the case should be decided in their favor.

Review of Laws

The mediator will want to be familiar with the legal rules and constructions that may apply to the case. This may be based in state statutes, or it may be based in decisions reached by courts that establish precedent. Precedent can significantly impact title decision cases and other insurance policy cases more than in many other cases. The parties’ attorneys may take turns giving their arguments and why the court would likely rule in their favor. Another important aspect of the case to evaluate is the choice of law that is being used. If the parties contend that different state laws should apply, they should include this information in the pre-mediation brief.

Assessment of Strengths and Weaknesses

Once the mediator has a thorough understanding of the legal and practical issues at hand, he or she may be able to help guide the parties toward a solution. The mediator can listen to the strengths and weaknesses of each side and provide feedback about which way the court may rule. He or she can point out the risks of litigating such a claim, including the potential damages at stake.

Types of Social Security Cases Eligible for Mediation

Posted on by

Mediation is an alternative form of dispute resolution in which parties meet with a third-party neutral, called the mediator. Many federal and state governmental agencies utilize the mediation process because it offers faster and less expensive ways to reach a decision in a case. There are several different types of Social Security cases that may be explored in mediation.

Claims Against Commissioner

If a Social Security claimant believes that the Social Security Commissioner denied his or her claim incorrectly or otherwise is in violation of Social Security rules, the commissioner may agree to conduct mediation with the party. This is often because both parties can benefit from mediation, including sparing them both the substantial expense, inconvenience and distraction of litigation. In these cases, the mediator may make suggestions regarding procedures that can be implemented to get the parties to reach an agreement. The mediator may meet with the parties separately in caucuses, as well as together in order to deliver proposals that can help bridge the gap between the parties.

Divorce Cases

For many individuals, the receipt of Social Security benefits is their largest source of income during their retirement years. As such, it can be a serious point of contention between spouses during divorce. The distribution of benefits often weighs against women during divorce. Current Social Security laws permit the lower-earning spouse to receive benefits on his or her spouse’s work record, provided that certain conditions are met. However, many women earn less than their spouses or have lost years of earnings due to raising children or making other contributions to the household. By working through mediation, the parties may be able to wind up with a more equitable solution between them to factor in the discrepancy in Social Security earnings.

Causes for Nursing Home Disputes

Posted on by

When placing a loved one in a nursing home, their safety and comfort are the family’s primary concerns. There are far too many stories of nursing home abuse and neglect. Some of the following situations are some of the most common reasons for nursing home disputes.

High Staff/Patient Ratio

Nursing home abuse is more likely to occur when there is a high patient/staff ratio. If there are not enough aides, a patient’s care may suffer as a result. Additionally, the turnover rate for employees is another key indicator that there may be a problem. If people are constantly quitting their jobs, there is a reason why. Management may not listen to their concerns, or staff may be overworked. This may also cause staff to lack necessary training and experience if they have not been employed at the home for long. These statistical figures can help bolster the patient’s family’s case and make a jury truly question whether adequate care was being provided. As part of a solution reached in mediation or arbitration, changing training protocols or requiring a specific staff/patient ratio may be one unique way to help the parties resolve the dispute.

Maintenance Problems

In some instances, loved ones are not injured because of any abusive tactics of stressed employees. Instead, they may suffer because of lowered health standards. This can be problematic for patients who may suffer from weaker immune systems and who are more likely to suffer a serious injury after a fall. Loved ones may start to document maintenance issues, including fraying carpet, warped floors or broken HVAC systems. Providing such documentation to the mediator may help convince the nursing home that important changes are necessary in order to help protect the health and safety of the existing and future patients.

Resolving Eminent Domain Disputes Using ADR Methods

Posted on by

Eminent domain describes the ability of the state to take private property for public use. It is easy to understand why something like this could trigger a vicious legal battle that takes a great amount of time to resolve. Unfortunately, within that timeframe, individuals can exhaust their resources fighting the government and the project the government intended to create can go undone, which can be a detriment to society.

So what is the best way to resolve eminent domain issues? It is even possible to achieve a resolution that makes everyone happy – especially the individuals who are at the mercy of a government with vast resources and powerful attorneys?

Often, alternative dispute resolution (ADR) is the best way to resolve the issue.

Eminent domain requires the state provide fair compensation in exchange for whatever property it assumed ownership over. Of course, what the government deems fair and what the owner who is losing his or her property deem fair can be light years apart. This is where ADR can have a significant impact.

What are the benefits of using ADR methods like arbitration and mediation for resolving eminent domain disputes?

ADR is confidential. It doesn’t matter if mediation or arbitration is chosen, both offer a private method for resolving legal disputes. The private information of the individual will not be accessible in public records during the process and anything that is discussed during either process cannot later be used against either party.

ADR is flexible. Using mediation or arbitration to resolve an eminent domain dispute works so well because there is an ability to tailor the resolution to suit the specific needs of those involved. In mediation, it is the disputing parties that have complete control over the outcome, so if they are willing to agree on an unorthodox solution, they are free to pursue it provided it is legal.

Eminent domain disputes can grow into ugly battles, but ADR makes them easier to resolve.

The Elements of a Sexual Harassment Case

Posted on by

Despite popular opinion, a valid sexual harassment case can be difficult to prove and cannot be premised on isolated events that are not serious in nature.  Instead, the employee who makes a legal claim of sexual harassment must show several elements, generally with proof by a preponderance of the evidence.

Harassment Is Because of Sex

It is not enough for an employee to be harassed in this context.  The conduct must be based on sex, such as sexually explicit comments or comments based on the employee’s gender.

Severe or Pervasive Requirement

The conduct of which the plaintiff is complaining must be severe or pervasive enough that it changes the employee’s working conditions.  This means that random horseplay or innocent flirting is not usually actionable.  Some courts have also denied claims regarding offhand comments, teasing or isolated incidents.

If the case proceeds to court, factors that are considered include how often the conduct occurred, how severe it was, whether the harassment involved threatening or humiliating conduct and whether the conduct unreasonably interfered with the employee’s work performance.  This is largely dependent on whether the conduct would be perceived by a reasonable person as being hostile or abusive.

Unwelcome

The plaintiff also has the burden of showing that the conduct was unwelcome.  This may be shown by the plaintiff presenting evidence that he or she asked the offender to stop.  This may be an issue that is highly contended in the sexual harassment context because the offender may say that the conduct was mutual and welcome.

Employer’s Liability

If the employee is seeking damages from the employer, he or she must show that the employer is liable.  This typically requires the employee to show that the employee availed himself or herself of any sexual harassment policy and that the employer failed to take proper steps to address the problem.  If the harasser is a supervisor, the employer has the burden of proof to show that no tangible employment action resulted that warrants liability.  Due to the heightened demands on the plaintiff and the employer’s desire to keep such matters private, parties may consider mediation to help resolve a sexual harassment case.