Tag Archives: Mediation

The Difficulties Involved in Negligence Cases

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Negligence cases are some of the most commonly tried cases.  A car accident, mistake made by a doctor or a defective product can quickly lead to litigation.  However, ADR is often much better at resolving cases involving negligence.

In negligence cases, the plaintiff has the burden of demonstrating the elements of the case.  These elements include showing that the defendant breached a duty of care that it owed to the plaintiff, this breach caused the plaintiff to suffer some harm and this harm resulted in some type of measurable damage to the plaintiff.  In some cases, the first element is in question.  The defendant and the plaintiff may be complete strangers to each other.  In some cases, a certain degree of care is expected, such as all motorists obeying traffic laws.  However, in other cases, the duty of the defendant is not as clear.  He or she may have owed very little duty to the victim who was later injured.

Causation can also be difficult to prove.  If the plaintiff has a pre-existing injury, it may be argued that the plaintiff’s injuries were already in existence and no new injuries occurred.  Sometimes more than one defendant is involved in a negligence case, and the plaintiff may be unclear on which party’s conduct resulted in his or her injuries.  Defendants may try to minimize the potential recovery of the plaintiff by alleging that the injuries are exaggerated.

Negligence cases can also be difficult for defendants.  Juries often have little sympathy for people who have acted carelessly or businesses that try to shy away from their responsibility.  To minimize the potential for a bad outcome, many parties involved in a negligence case decide to settle their claim, often with the help of a trained mediator who can explain the risks of litigation.

Using Mediation in the Medical Negligence Context

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Medical negligence cases are often complex in nature, typically requiring the testimony of a medical expert to substantiate the plaintiff’s claims.  The legal and factual issues are often complex.  These factors mean that there may be additional issues in dispute, which tends to make the case longer, more complicated or more expensive for both parties involved in the process.

Another complication of medical negligence cases is that multiple defendants may be part of the case.  This means that each defendant may be represented by his or her own attorney that is looking after only his or her own client’s interests.  In this manner, the defendants may argue with each other and attack each other, which may only drive up the recovery for the plaintiff.

For parties that want to minimize the potential for a negative outcome, mediation is a reasonable solution.  Mediation can help minimize the costs associated with such lawsuits for both parties.  When such hefty costs are involved, the stakes are greater.  However, mediation can help level the playing field.  It may also allow a defendant to offer more in a potential settlement since it will not have to shell out as much in legal fees.

Additionally, when multiple defendants are part of the case, it can be difficult to apportion fault between the defendants.  A jury may not be sympathetic to a particular defendant and find this defendant primarily liable for the injuries.  In mediation, the parties can attempt to reach a formula that apportions the guilt in an equal or fairer way.

Mediation provides an opportunity for the parties to come together and resolve their case on their own terms.  This may include a formal apology by any defendant that may have made an error that resulted in the plaintiff’s injuries.  It may also provide a settlement figure that all of the parties can agree to and live with.

Common Family LGBT Issues Handled in Mediation

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LGBT couples face many of the same family law issues as other groups.  However, the needs of LGBT individuals may be different or sensitivity may be necessary to best provide for them.  Mediation allows the parties to retain their own decision-making power and avoid having to battle issues out in court.  LGBT individuals may be afraid that negative social stigmas may affect the legal outcome of their case.  In other situations, the law has not kept up with a changing society, providing potentially unjust results.

Some of the most common family law issues the LGBT community faces include:

Cohabitation Agreements

Many same sex partners live together without the bond of marriage.  Until recently, many states outlawed marriages between individuals of the same sex.  This makes cohabitation agreements very important for the community.  These agreements set out the property rights of each party and the expectations of the parties.  Through respectful negotiation, the parties can often walk away from mediation with a legally-binding agreement regarding their cohabitation.

Child Custody Matters

Child custody matters are often difficult in LGBT cases because one parent may have a genetic link to a child and one may not.  Additionally, LGBT individuals may wish to adopt the child of their partner who was born out of a previous relationship.  Agreements may need to be established to specify the rights and duties involved of parents who are going through artificial insemination.  Mediation can help clarify these issues and provide an objective method of resolving such issues.

Divorce

LGBT individuals may be at risk of unfair decisions during divorce.  If their marriage has not been considered legal for long, there may be important property implications.  Additionally, a same-sex spouse may find himself or herself cheated out of pension funds or retirement funds that would be divided in other situations.  Mediation can develop a fair and reasonable agreement at a reasonable cost.

Using Mediation in the Adoption System

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Every year, people adopt children from around the world.  Adopted children may be infants or they may be older children who have been affected by tragedy or who have not grown up in the most ideal of circumstances.  For many adoptions, the biological parents may wish to maintain some contact with the child who is placed with adoptive parents.  This process can sometimes add complications to the mix.  Also, in some cases, older children may be interested in their roots and may want to reconnect with parents who made the difficult decision to place them for adoption.

Through open adoptions, the biological parents may be able to have some contact about the child that they placed for adoption.  In some situations, the biological parents may have a legal agreement for visitation.  In other cases, the biological parent may simply ask for a few pictures and updates throughout the year.  In some situations, these legal agreements or understandings may be challenged, which may provide a foundation for a legal battle.  Rather than battling the case out in court, some parties decide to go through the process of mediation to resolve the legal issues.

Mediation is a process led by a third-party neutral.  In adoption cases, the mediator may be a former social worker, educator, lawyer or judge who is familiar with family law.  The mediator talks to both parties who are in dispute and tries to understand their underlying motivations and interests.  He or she can often help bridge communication gaps and suggest ways that the parties may be able to resolve their dispute without having to subject the adopted child to a nasty court battle.  At the end of the process, an agreement is often reached that the parties helped to cultivate which sets out their understanding of the situation and how to proceed with their relationship.

The Changing Scope of Marijuana

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As time goes on, more individuals have come to accept marijuana as less of a hard drug and more as a product akin to cigarettes or alcohol. However, there is still a legal conflict between using marijuana and the potential illegality of this act. Some states have permitted the use of marijuana for recreational purposes while others only permit its legal use for medicinal purposes. Still other states continue to outlaw its use completely and it is still considered a drug under federal law.

Due to the differing treatments of marijuana, there are several ways that people and groups may decide to handle this issue. Individuals and groups may choose to make provisions related to the use of this substance as part of rental agreements. By having clearly laid out agreements, the parties can share their viewpoints on the use of this substances, establish safe parameters and discuss penalties for any violations.

Another context where the use of this substance may come into play is in the employment context. Employers may provide specific guidelines related to the use of this substance, whether this substance will be tested during drug assessments and whether there are any restrictions as to the use of this substance. One particular concern that employers may have is whether individuals partaking in this substance may be impaired when they are driving or otherwise conducting more dangerous activities for their employers that may expose them to liability. Clear agreements that set out the employer’s expectations and policies related to the use of this substance may provide clarity in these situations.

Individuals and groups who want to negotiate agreements related to the use or prohibition of this substance may decide to do so through mediation. If they are subject to penalty, mediation or arbitration may be able to help discern whether the policies were correctly followed and applied.

Keys to Mediating Marital Property Disputes

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After accumulating items for a potentially significant period of time, many times parties do not agree on how to split up their marital assets.  A mediator can help the parties reach a resolution outside of court that satisfies both parties’ interests.

Legal Tests

One effective method that a mediator uses is to explain the law and how the judge might rule on a particular issue given that law.  The parties can then compare this possibility with the certainty of whatever type of arrangement they may be able to work out among themselves.

Most states use equitable distribution to divide a couple’s property.  Under this set of rules, the judge is left with a lot of discretion to make a division of property that is fair to the parties.  Some judges and state laws may begin the analysis by assuming that an equal split is fair.  However, there may be factors that move the judge away from this point, such as the length of the marriage, the education of each party, the earning power of each party and the custody arrangement.  Some judges may simply order the sale of all of the property and a division of the proceeds.  Some states allow the court to award separate property.  Some states suggest that each spouse should receive at least one-third of the property while others prohibit a judge from driving a spouse into poverty due to the division.  In other states, community property standards apply.  These states divide the marital property equally.

Sentimental Value

Another important consideration in the mediation of property is the emotional attachment each party has to it.  While the court is not bogged down by this consideration, this aspect can be critical in successfully mediating the case.  A party may decide to forego his or her interest in a particular item that means less emotionally in exchange for an item that has a greater sentimental value.

Types of Domestic Relations Cases Handled in Mediation

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Mediation is an alternative way to resolve virtually any family law case.  Due to the often ongoing relationship between the parties and the personal matters at stake, many parties benefit from mediating their domestic relations cases including cases involving:

Divorce

Mediation is commonly requested as part of a divorce.  Some states require parents to go through mediation if their divorce involves minor children.  Divorce often involves a number of key issues and may be less expensive when most of the issues can be resolved without the court’s intervention.  A mediator is sometimes tasked with helping the parties decide how to divide their property in a fair manner.

Parenting Plan

Mediation may be able to help parents develop a parenting plan as part of their divorce or as a stand-alone plan.  Many states are abolishing the rigid structure of having a primary custodial parent and another parent who only has time every other weekend with their children in favor of carefully structured parenting plans that allow both parents meaningful access with their children.

Separation

A mediator can help the parties reach an amicable separation if they are not yet ready for a divorce. Having a mediator in place allows the parties to create some boundaries and structures around new living situations.  The parties can agree on how to split up certain assets, debts and income while they are separated.  They may also reach an agreement regarding spousal or child support during this transition period, which may sometimes last years.

Child Support

While all states have formulas in place to determine the proper amount of child support, these guidelines may not always be appropriate when unique circumstances are involved.  Parents may be able to make decisions about support that work better for their family, such as agreeing on post-secondary education or on expenses for a disabled child.