Tag Archives: Mediation

Determining When to Mediate a Boat Accident Case

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Mediation has long been accepted as an effective method of resolving legal disputes. It has been used recently to help settle personal injury cases, including those that involve boat accidents. Mediation in boat accident cases may be initiated if the lawyers for the plaintiff and the insurance company have failed to reach an agreeable settlement, usually after several rounds of negotiations. When litigation seems likely, one of the parties may suggest mediation instead. In some states, mediation is required before a case can proceed through litigation.

Mediation may occur at the mediator’s office or in another neutral business setting. It commences with each party providing an opening statement about their side of the case, which they should communicate concisely and respectfully. The mediator explains the process of mediation and the various steps involved in the process. He or she explains the role of private caucuses which are private meetings between the mediator and one of the parties and his or her legal counsel. During these caucuses, the mediator gathers important information about the case and any offers that are being made to settle. He or she then goes to the other party with this information and offer in an attempt to guide the parties toward settlement.

The mediator’s role is important because he or she is a neutral party that does not legally represent either side. He or she can give an unbiased opinion about the case or a particular legal issue so that the parties may be better able to anticipate issues that a judge or jury may find with their side of the case. He or she may also discuss how similar issues were decided in court so that the parties have a realistic viewpoint on how the case may wind up. These matters often increase the likelihood that the parties will settle their claim. If the parties do reach an agreement, they sign a written settlement agreement that stands as an enforceable contract.

Mediation of Art Disputes

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Art disputes can often be complex in nature, often dealing with legal and non-legal issues that are interwoven. These disputes require a thorough understanding of every aspect that affects the dispute. Whether arising from a divorce case in which the ownership or value of the art is in question or dealing with disputes in the art industry, art disputes can often be sorted out during the course of mediation.

Mediation is a proper mechanism to handle disputes arising out of return and restitution, intellectual property, loan and deposit and acquisition disputes. It can also be used for issues involving digitalization, misappropriation, art being used as collateral in a financing transaction or donation issues. Art disputes may also involve special cultural distinctions. Parties involved in mediation get to choose the mediator that will be used and can look for someone with an art background or someone who is knowledgeable on art subjects.

During mediation, the intricacies of the art dispute can be addressed within the legal framework. Since mediation is a voluntary process, the parties can look to the law for guidance but are not bound by its parameters. For example, if a statute of limitations has passed, there may still be a remedy through mediation. At the same time, the parties can consider the legal issues and how a court may decide a particular issue while pursuing an amicable agreement.

The mediator tries to get the parties to see the situation from the other’s side and provides a realistic vision of how the case may eventually be resolved if the parties do not find a way to settle their dispute. The alternative is often much longer, public and expensive than mediation.

Considering Alternative Dispute Resolution for Shareholder Disputes

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Shareholder disputes are far too common and are often caused by a desire for one or more shareholders who want to terminate the shareholder relationship.  However, they can also arise because shareholders disagree how a business is being run or because shareholders fear liability on the part of other shareholders that they believe is illegal or fraudulent.  Shareholders may allege misconduct such as misappropriation, breach of fiduciary duty or breach of the shareholder agreement.

Shareholders may consider mediation to help resolve disputes of this nature.  Mediation uses an impartial third party to help resolve the case.  This avoids the publicity of a trial and the dissemination of private information to the public.  Parties can choose their mediator, so they may select someone who is experienced in the same industry that the shareholders are a part of.  Mediation allows both sides to communicate their perspective and to express their interests. The mediator attempts to bridge the communication gaps between the parties while offering valuable feedback regarding the merits of different claims or defenses.  The mediator may provide suggestions on ways to potentially settle the claim and will encourage both parties to come up with their own creative solutions.  This form of ADR is particularly well-suited to shareholder disputes because it is non-adversarial in nature, allowing the parties to reach an amicable solution and maintain their relationship.

For other cases, shareholders may consider arbitration as a way to resolve the dispute.  Arbitration is an abbreviated form of litigation.  However, the parties choose the decision maker instead of having a judge or jury.  Arbitration can be binding by nature and can only be appealed on limited grounds.  The arbitrator can issue a binding decision that all parties must adhere to.  At the same time, arbitration offers a less expensive and faster resolution than would likely be available through litigation

Mediating Contentious Alimony Cases

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Spousal support cases are some of the most bitter cases where the parties have often dug in their heels to completely opposite positions.  Spouses on both side of the issue may feel strong emotions such as mistrust, anger, abandonment, outrage and exploitation.

Effectively mediating such cases takes a great deal of patience and sensitivity as the mediator navigates the narrow path to finding a solution that both parties will be satisfied with without feeling taken advantage of.

In most states, there are no hard and fast rules as to the amount or duration of alimony payments.  Many courts treat the issue of alimony as a discretionary one in which they decide what is fair under the particular circumstances after weighing a number of factors, including the length of the marriage, the contributions of the spouses during the marriage and the earning capacity of the spouses.  The courts are often tasked with the difficulty of determining how to keep both spouses in the approximate standard of living that they enjoyed during the marriage after they are no longer together.  A skilled mediator can explain that many spouses have financial interdependence during a marriage and that it will take some time to unravel this so that the spouses can eventually both secure financial independence.  The key question is how spousal support can eventually lead to this possibility.

Because there are typically no hard and fast rules regarding the order of spousal support, the mediator can use this ambiguity to assist with mediation.  He or she can explain to each party independently what the court might order in the worst case scenario and potentially cite to a specific case where that is exactly what happened.  Fueled with this information, the parties may be more inclined to settle their spousal support case on their own terms rather than leaving the decision to be made in an unpredictable fashion.

About Mediation in Commercial Foreclosure Cases

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Commercial foreclosures have the power to destroy a struggling business by reclaiming the property where the business is conducted.  Mediation can be employed in these situations to help the parties avoid the foreclosure process, which is often expensive, time-consuming and cumbersome.  Mediation can help the parties come together with the help of a third-party neutral to develop possible solutions.

Either party can request mediation.  The mediation can occur any time before the property has been foreclosed upon.  When the borrower and the lender go to mediation, they should come prepared with the relevant documents, including the mortgage documents, notice of sale, notices, warning letters, communications between the parties and any other documents that may be helpful in the case.

At mediation, both parties may be represented or unrepresented, depending on the rules of the particular mediation program they use and personal preference.  The lender should send someone to mediation who has the authority to modify the loan or otherwise negotiate an acceptable agreement.  The parties must mediate in good faith and not simply use the process as a way to halt the foreclosure process.

At the end of mediation, the parties either reach an agreement regarding an alternative to foreclosure such as a loan modification or the foreclosure continues.  While participating in mediation does not guarantee that foreclosure will be avoided at all costs, it does present an opportunity to potentially avoid this outcome, so there is little downside to fully participating in the process.  Often, parties learn about options that they had not been aware of or had not considered prior to mediation, such as subleasing the property or seeking a temporary forbearance if revenue is expected to pick up.  Mediation allows the parties to consider creative solutions that can help them regain financial footing.

Understanding the Commercial Foreclosure Process

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The commercial foreclosure process is very similar to a residential foreclosure. If the commercial borrower defaults on the loan, the lender may take steps to reclaim the property. Default is often triggered by non-payment, but it could also be due to some violation of the mortgage agreement such as failing to maintain insurance on the property or subleasing the property against the instructions on the mortgage documents. A foreclosure in the commercial setting may be conducted through the judicial or nonjudicial process.

The nonjudicial process is sometimes used when the mortgage documents contain a provision permitting this act. A power of sale provision allows a trustee to sell the property without being supervised by the court. The borrower is entitled to notice of the sale and may have a certain amount of time to cure the default. In contrast, a judicial commercial foreclosure is handled through the court system and is initiated with a lawsuit against the borrower asking for the court to provide a foreclosure and order to sell the property. Each defendant is served with a copy of the complaint and must provide an answer to avoid a default judgment. If the borrower does not prevail in the action, the lender secures a judgment and order of sale and provides notice to the borrower of when the property will be sold.

The foreclosure process is often a long and expensive one, often resulting in net losses for all parties involved. The borrower loses the funds he or she invested in the property. The lender may receive less money for the sale of the property than the original note was for. Even if the lender can pursue a deficiency judgment against the borrower, the borrower may go bankrupt due to not having a business location to work out of. Arbitration and mediation options provide alternatives to the foreclosure process.

Uncovering Client Needs through Mediating Attorneys’ Fees Disputes

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Attorneys’ fees disputes are so common that many states and bar associations provide free or low-cost mediation services to help attorneys and their clients resolve disputes regarding legal fees.  The mediation process is voluntary and can help the parties resolve their dispute without need for any further legal action.

While fee disputes may appear to be about money, there are often other issues lurking around such disputes.  A client may not have been satisfied with the attorney’s services or felt that he or she was disrespected in some way.  He or she may have had an impression of the cost of litigation and was then surprised by a large legal bill.

Both parties have the possibility of benefiting from mediation.  This gives the parties the opportunity to each speak their peace.  A client may not have realized some of the things that he or she would be charged for and an attorney may reference the fee agreement that spelled out such charges.  A client may feel that an attorney did not sufficiently communicating about progress in the case and associated costs.  In some instances, the client may have discharged the attorney and feels like the fee is undeserved.  A lawyer can explain his or her point of review in a respectful manner and potentially sidestep any larger concerns, such as an ethical complaint being made against him or her.

Mediation also provides for the possibility of the parties coming up with their own solution.  This may include the lawyer writing off certain charges or offering a discount if the bill is particularly large.  It could also mean the client offering to make monthly payments on the amount owed rather than facing legal action by his or her own attorney.  A significant benefit of mediation is the ability for the parties to reach their own reasonable solutions.