Tag Archives: Mediation

Determining When a Civil Rights Case Is Appropriate for Mediation

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handshakeDetermining When a Civil Rights Case Is Appropriate for Mediation

Mediation helps individuals, businesses and governmental agencies save time and money by having the parties come together in an attempt to reach an amicable resolution of their case. Determining whether a case is appropriate for mediation often depends on considering the temperament of the parties involved and the circumstances involved. Some specific factors that lean toward mediating a case include:

Parties have Differing Views on the Laws or Facts

When the dispute exists because there is a difference in opinion regarding the facts or laws, the case may be amenable to mediation. This process often serves as a reality check for the participants with the mediator explaining how the court has ruled in similar situations. He or she can also highlight the relative strength or weaknesses of cases.

When a Party Wants to Be Heard

Even if a case goes to litigation, the claimant may never feel that he or she had the opportunity to explain his or her own perspective. Mediation can be an effective way to allow the claimant to express his or her emotions and to receive empathy in response. Also, the party may want to talk to the other party directly, which can happen in mediation but not usually in litigation.

Poor Communication

In some situations, a negotiation is a logical conclusion to a case. However, the parties may simply be unable to communicate effectively with each other. Mediators are skilled professionals who use a variety of dispute resolution techniques to get the parties to express their feelings, identify their interests and find points of agreement. The parties may perceive their interests as incompatible, but a mediator may be able to change this mindset and help the parties align their interests.

Mediating Paternity Cases: Only the Beginning

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In many states, it is necessary for a father to first establish paternity before he will have any rights to the child.  This makes the paternity action the first of potentially many issues to be decided.  By mediating the paternity case rather than litigating it, the parties can begin in a spirit of cooperation and work toward making other decisions related to the child.

In mediation, the parties can discuss their respective positions in a calm and respectful manner.  At the same time, parents can use creative solutions that may not be available in court.  For example, if a man knows that he is not the biological father but would like to remain part of the child’s life, the parents may agree to paternity without requiring any type of DNA test to confirm parentage.  If the parties do not wish to have their case made public in front of others in the courtroom, mediation is a sensible alternative as the information shared during mediation is confidential.

After paternity is established, the parents may then discuss other topics related to the child, including their goals for his or her upbringing, the type of relationship that the parents want the child to have with each of them and how much time each parent will have with the child.  The parents may find that they are in agreement on many of these subjects once they focus on the child’s interests.  The parents may work out a parenting plan, custody arrangement or visitation schedule that suits both the needs of their child and their own professional and personal obligations.

Parents can also discuss child support by taking into consideration their incomes, the costs of daycare, medical insurance and other costs to raise the child.

Mediating Palimony Claims

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Palimony is a mix between the word “pal” and “alimony” for good reason.  Alimony is commonly reserved for married couples.  However, in some cases, it – or something like it – may be awarded to individuals who are not married.  Being involved in a legal battle in which palimony is contemplated can be complex and exhausting.

When a couple gets divorced, the law in their state uses equitable distribution or community property principles, depending on state law.  However, when they are determining palimony, they often apply theories related to contract law or equity considerations.  In this manner, cohabitating couples are afforded some protections, although these are often much less than those afforded married partners.

Litigating palimony cases is often time-consuming and expensive.  A party who does not want to pay palimony may wind up fighting over the issue and being ordered to pay anyway.  A party who does want alimony may wind up spending a sizable amount of money on litigation only to find out that he or she does not meet the state requirements for palimony.  Just like in alimony cases, the judge is often given a significant amount of discretion, so the outcome is often unpredictable.  Additionally, palimony laws vary by each state with some requiring a formal written contract before awarding it, so it is difficult to determine whether a person may be eligible for this type of support.

Rather than litigating the claim, many parties may benefit from mediating it.  During mediation, the parties can present their own position and work toward a compromise.  The parties may agree for the higher-earning partner to pay for education or temporary support based on promises that were made during the relationship.  By engaging in the mediation process, parties can often maximize the satisfaction of their needs while minimizing a risky outcome.

Keys to Mediating Marital Property Disputes

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After a couple has accumulated assets for a number of years and their relationship starts to deteriorate, they may not agree on how these items should be divided. Sometimes these items represent a source of contention for the parties who are not really fighting over the household furniture or silverware but are instead using them as a way to punish each other or keep the conflict alive. A mediator can help the parties deal with the emotions involved in divorce and guide them toward an out-of-court resolution that satisfies both of their needs.

One effective way of starting the process is to acknowledge the difficult feelings that marital assets cause. They may be tied to memories or shattered dreams. By communicating in a safe environment and accepting that the process is difficult, the parties are often able to move past this in order to think rationally.

Once in this mindset, the mediator can explain the negative consequences of litigating the case, such as the tremendous financial cost. Many married partners have battled things out in court only to find that they had no money left at the end of the process due to the steep legal expenses. Additionally, litigation means that the parties will air their grievances in a public forum and often in a setting where a person can easily search for court documents and be able to find them. Being in public often cements parties’ positions and makes them less willing to compromise. In contrast, mediation is confidential and keeps private battles away from the public eye. Mediation often helps the parties heal and focus on having a better relationship in the future. While courts are limited in the remedies that they can offer, mediation provides greater flexibility to the party participants.

Human Rights Mediation 101

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Mediation is an effective process that informally resolves cases that may result in litigation. This includes settling cases related to human rights violations including committing or permitting discrimination. An impartial third party helps the party resolves their dispute by leading the parties in conflict resolution tactics.

A mediator helps bridge communication between the parties and can explain the ground rules of civility and demonstrating mutual respect throughout the entire process. Rather than cementing their positions and engaging in arguments, the parties are encouraged to truly consider the other party’s position. This approach helps avoid the possibility of parties becoming entrenched in the dispute and failing to make progress throughout the process.

The parties who are involved in the dispute may or may not be represented by legal counsel. If the party has a lawyer, the lawyer’s role is much different than the mediator’s role. The mediator represents neither party while the lawyer represents his or her own client’s interests. Additionally, the lawyer may explain the potential consequences – good or bad – of accepting a particular settlement offer. The mediator may have a background in human rights law, civil rights or social work that he or she can use to develop a better understanding of the issues involved in the case. The participants can choose the mediator that they want to assist them with their case.

While the lawyer can play an important role in the mediation process, mediation is likely to be more effective when both parties are fully engaged in the process. Mediation is a voluntary process – the party cannot be forced to accept an offer or to participate in the process. Mediation begins with the agreement of the parties to try the process and to agree to participate in good faith with an open mind.

Mediating Complex Probate Cases

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Probate cases are often difficult for a number of reasons. A family has lost a loved one while also grappling with financial decisions and consequences. Rather than bringing further complication into the case, many loved ones decide to mediate their probate case.

Mediation is an alternative to antagonistic litigation. Rather than the parties being adversaries who ignore each other in the court room, mediation focuses on bringing the parties together to work out solutions to their problems together. The parties are assisted by a neutral person who helps facilitate communication between them so that they can reach a mutually acceptable resolution of their case. Unlike a judge, a mediator does not impose an order on the parties. Instead, he or she helps explore the interests of the parties and possible solutions to these problems which the parties can choose to agree to or not agree to.

During mediation, the parties begin with an opening statement that emphasizes the problems that the parties are having and their point of view regarding these problems. Depending on the dynamics involved between the parties and the mediator’s personal style, the parties may remain in the same room with the mediator who encourages the parties to communicate and work through their disagreement or the mediator may separate the parties in an effort at shuttle diplomacy. If the second option is used, one party communicates information to the mediator who then shares information with the other side, going back and forth between the parties, laying out their offers of compromise and why they feel a certain way.

If the parties reach an agreement about their case, the mediator draws up an agreement and the parties sign off on it. If the parties do not reach an agreement, they must still honor the confidential nature of the mediation process and not communicate information shared during this process.

Role of the Mediator in Healthcare Disputes

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When a patient is in a dispute with a hospital, doctor or other healthcare provider, the parties may agree to mediation to help them resolve their legal case. The mediator plays a pivotal role in the potential success of mediation.

The mediator begins the mediation process by inviting the parties to discuss the problem. He or she lays ground rules so that the parties will be able to discuss their legal dispute in a respectful manner. An effective mediator can help create a cooperative environment so that the parties are able to see a different perspective and consider another opinion regarding the dispute. The patient may believe that the healthcare provider has given inaccurate information or made a mistake. The healthcare provider can have honest communication about the patient’s treatment plan and the reasons behind certain decisions. If a claim has been denied, the patient may explain how this can impact his or her life while the insurer can consider if the patient’s claim may be approved. In this way, the mediator helps the parties to open up in a safe environment to clarify the issues involved in the dispute and to improve communication. The mediator is only interested in helping the parties reach a mutually agreeable solution and is objective throughout the process.

The mediator can also help the parties consider alternatives to litigating the case. He or she often leads the parties in brainstorming sessions in which they consider possible solutions to the underlying issues. The parties work together rather than against each other. At the same time, the mediator empowers the parties to keep power over the proceedings and to keep the decision-making authority out of the hands of a third party like a judge or jury.