Tag Archives: Mediation

Determining Whether Mediation Is Appropriate for an Agricultural Dispute

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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.

A New Way of Handling Maritime Legal Disputes: Mediation

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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.

Considerations for Divorce Modification & Enforcement

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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.

Mediation of Partnership Disputes

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When business partners are on the brink of splitting up, the consequences are often significant. If the business dissolves, employees may lose their jobs. Creditors may go unpaid. The goodwill of the business can be at stake. Legal fees may mount during this time. In order to prevent dissolution or sometimes to minimize the hardship that occurs during this process, the partners may wish to mediate their partnership dispute.

Many business partnerships struggle because they fail to properly plan for the future. With a busy business, partners often focus on running the business, employment disputes, marketing and other aspects of the business. This takes away their focus from the partnership. When things are going well for the business, they may overlook planning. However, when conflict arises, the partners may not be equipped to deal with it effectively.

In order to stop disastrous results, it is important to implement conflict prevention with partners. It is important that the parties define expectations and agree on the proper way to deal with conflicts as they arise. It is often critical to employ the mediation process as early as possible when they are getting along better than after they have become adversaries.

Mediation allows the parties to sit down in a neutral setting and truly focus on their partnership. They are often able to work out difficult problems and resolve interpersonal issues. Mediators are trained at resolving conflict through expressive communication techniques. The mediator can point out the negative possibilities that are associated with not settling the dispute, such as increased legal expenses, loss of employee morale and allowing a judge to decide the fate of the business. With these guidelines, the parties are often able to center their focus on a peaceful resolution of their dispute while retaining the power to make decisions important to their business.

Opting for the Mediation of Trusts and Estates Disputes

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Trusts and estates disputes may arise for a number of reasons.  A will may not be clear regarding which person receives what under the will.  When assets are said to be divided among the children, this can create conflict as different items have different significance to the children.  Because people tend to want to avoid conversations about death, will may not provide adequate details and people may not talk to their children or other beneficiaries before passing.  This can make some parties believe that the testator was influenced by someone who benefited greater by the will.  This can lead to a will contest in many situations.

When such a contest is apparent, the parties may choose to go through mediation to prevent litigation.  Mediators are skilled professionals who are experienced with dealing with complicated family dynamics, including sibling rivalry or the involvement of in-laws.  They use this experience to gain trust in each individual party.  They explain that the process of mediation allows the parties to retain the power to make decisions that are important to them rather than handing over this power to a judge or jury.

A mediator funnels information and settlement offers back and forth between the parties.  During this time, the mediator will get to realize the parties’ interests better and use this information to offer suggestions about how these interests can be met.  In cases involving wills, the issue may be more about wanting to feel equally loved by the decedent or wanting to keep an item of greater emotional value that really connects with him or her.  Mediation can allow for flexible compromises, such as letting one sibling have possession of a painting for a number of years and then passing it to the next sibling for several years.  This process allows the parties to create customized solutions to their problems.

Exploring Options through Guardianship Mediation

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Some cases are better suited for mediation than litigation.  Cases involving elderly guardianship appointments often fall within this classification.  Guardianship cases often involve private matters and complex family dynamics that may be better handled with professional assistance.

Mediation is a private process in which the parties involved in a dispute work together with a third-party neutral who encourages them to communicate and come up with unique solutions to resolve the problem.  This process is often much more open than litigation since the parties can talk to each other directly rather than through the questioning and cross-examining conducted by lawyers.  If a party is concerned about how someone has handled medical issues or finances, these concerns can be addressed with the process of mediation.  In comparison, these are simply accusations that can be lodged in litigation that may not be adequately explained through the process of litigation.  While mediation provides an open forum for the parties to discuss, it also preserves the privacy of the parties by not having them air its dirty laundry on a public record.

One of the common issues that plague guardianship cases is miscommunication.  Due to difficult family dynamics, assumptions or misgivings, communication may not be occurring with the parties.  Mediation provides an opportunity for the parties to participate and engage in open dialogue.  It also allows them a chance to work together toward a mutual goal, such as protecting the health or finances of a loved one.

If a case proceeds to trial, the judge may make one of the participants the guardian of the ward.  However, with the process of mediation, the parties can establish creative solutions that work best for the family, such as dividing responsibilities, financial commitments and logistical assurances that may not be available through a resolution reached in court.

Reasons to Consider ADR for Professional Liability Cases

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Professional liability cases involve claims that someone has violated their professional duty.  This may be a lawyer who violated confidentiality requirements, a physician who committed medical malpractice, an accountant who provided bad information or a financial advisor who violated a fiduciary duty, among others.  When such issues arise, a lawsuit may be imminent.  However, there are alternatives available, namely through the use of ADR solutions.

Many forms of ADR are voluntary.  However, some parties may have agreed to a form of alternative dispute resolution such as mediation or arbitration through a contract agreement that was signed prior to any conflict actually arising.  ADR options are also confidential in nature, allowing the parties to communicate together or have their issues resolved without the concern of the public knowing the specific details involved in the case.

Another key aspect of ADR is that the parties reserve more power in the process.  For example, in mediation, the parties only get to decide how to resolve the claim.  The mediator is a person who facilitates communication but has no power to decide the facts or issues like a judge would.  While in arbitration the arbitrator does have such deciding power, he or she is personally selected as the factfinder by the parties.  Additionally, the parties can agree to narrow the issues and establish guidelines about discovery that ultimately help make the process faster and more affordable.

Decisions reached in ADR are usually firmer than those made by a court and that are subject to appeal.  Mediation agreements are binding agreements by the parties.  Except for limited circumstances, a binding arbitration agreement cannot usually be appealed.  This helps create greater finality for the decision reached in arbitration.