Tag Archives: Mediation

Legal Malpractice Considerations in Mediation

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Legal malpractice cases are often quite complex because they involve a case within another case.  Such claims often arise when the underlying case was not resolved in the manner that the client wanted, leading him or her to speculate on the possibility of improper action on the part of the attorney whom they hired.  In order to avoid some of the negative aspects associated with suing someone’s own lawyer, mediation can be used in place of litigation.

One of the complexities of a legal malpractice case is that the plaintiff has the burden of showing that he or she would have been successful with the underlying case had the lawyer not made the alleged mistake.  Since much of the law depends on a subjective analysis of the evidence, this can be a difficult burden to demonstrate.

Another complexity involved in legal malpractice cases is that an insurance carrier may be involved.  A carrier may be eager to settle the case if it believes that the cost to defend the case may be greater than the cost to resolve the case through mediation.  However, this also requires that the legal malpractice carrier send a representative who can provide settlement authority on behalf of the insurance company.

The stakes involved in legal malpractice cases are often high, including having the lawyer’s reputation on the line.  Additionally, the case may involve confidential communications.  As such, a malpractice case may involve sensitive information.  Mediation is a collaborative process that tries to move away from making inflammatory statements about each other that will simply provoke each other and instead focuses on resolving the matter in a peaceful manner through open dialogue.  If successful, the process often results in a faster and more affordable resolution than litigation provides.

Creative Ways of Handling Marital Property

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When parties are unable to reach their own decisions regarding how to divide their property, many courts often split the property evenly without regard to whether this split makes the most sense for the parties.  Through mediation, the mediator may suggest creative ways of determining how to divide marital property including:

Consider the Value to Life

Rather than focusing only on the monetary aspect of property, a mediator may suggest dividing property in a manner that takes into account the value that the property will add to each person’s life.  For example, if the couple has a marital home and a vacation home of very different values, the mediator may suggest giving each person one of the properties because each can provide a suitable residence to each spouse.  The same may be completed with vehicles and with recreational items. 

Adjust Spousal Support

Many courts do not use a specific formula to determine how much spousal support to award and instead look at a number of factors in determining this issue.  However, spouses are often better equipped to realize how much additional support will be necessary for the lower-earning spouse to maintain the same lifestyle.  The spouses can also consider trading off assets so that the spousal support obligation is reduced.  For example, if the couple owns additional residences that can be used as rental income, this amount of rental income can be deducted from the spousal support amount. 

Prolong Division

In some cases, it may not serve the parties’ best interests to liquidate assets immediately and divide them.  For example, the real estate market may be lagging behind and the parties may prefer to hold onto the property until there is new demand in the market.  Tax consequences may make it detrimental to liquidate stocks or retirement funds, so the parties may agree to an equalization later in time. 

How to Maximize Bankruptcy Mediation

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Bankruptcy is ripe for the use of mediation since creditors are already intimately involved in the process.  Through mediation, the parties can all work together to achieve a settlement that they will present before the court.  There are steps that the parties involved can take to make the best settlement possible, including:

Use the Mediator’s Expertise

Bankruptcy mediators are commonly former bankruptcy judges, bankruptcy attorneys and business people familiar with the bankruptcy process.  This unique experience allows them to fully explain the process of bankruptcy to both the debtor and creditor.  Additionally, the mediator can rely on this experience when conveying each party’s position to the other side.  With this specialized experience, a mediator can quickly pick up on valid points and funnel this information to the other side in a productive manner.

Be Realistic

A mediator will urge all of the parties involved to have realistic expectations.  For debtors, it is important that they understand the bankruptcy process and what is at stake.  For creditors, it is important that they know where their claim falls in relation to other claims.  If a client continues to hold unrealistic expectations, the mediator may be more apt to deliver this message because he or she may appear more authoritative than the other parties or their respective counsel.

Think Outside the Box

One of the biggest benefits of mediation in any context is its ability to find creative solutions to the legal issue at hand.  When a complex bankruptcy is underway, the parties may consider bringing third parties in who may have insight or ideas about how the bankruptcy settlement should be worded.  There may be a buyer willing to purchase part of the debtor’s property that may be folded into the bankruptcy settlement and that allows the creditors to walk away with a little more.  Creative solutions often help tie the underlying interests of the parties with the ultimate resolutions that are made in the form of provisions in the settlement agreement.

Considerations for Alimony Agreements

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Parties who do not initially agree on alimony matters may disagree about the parameters surrounding the payment of spousal support. Some considerations when negotiating an alimony agreement include:

Purpose of Alimony

The parties may be at odds as to whether alimony should be paid at all. Alimony is meant to provide financial support to a lower earning spouse, often in recognition of that spouse’s contribution to the marriage that may have negatively impacted his or her earning potential. A spouse who receives alimony can work on becoming financially independent while having enough funds to remain solvent after a divorce.

Length of Alimony

Another point of contention between spouses is how long alimony should last. The appropriate amount of time for how long support should remain in effect depends on the particular circumstances. For example, if alimony is paid so that the spouse can receive additional training or education to be able to work in a new career with greater earning potential, alimony may only be necessary until such education or training is obtained. Spouses may be able to work together on coming up with an agreement regarding this provision and others in order to make their divorce less contentious.

Amount of Alimony

Another source of friction may be the amount of alimony that one spouse should be required to pay. In some cases, a creative property distribution or use of other resources can help minimize the amount of alimony that will be necessary for support.

Modification of Alimony

The spouses may wish to reach an agreement regarding when the alimony plan may need to be revised, such as if the paying spouse has a change of income or develops a serious illness. Mediation can help the parties consider when an event is considered substantial enough to warrant a change in the agreement.

Importance of Using Mediation in a Professional Liability Case

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When a person has a legal dispute with a profession who he or she hired and the dispute is regarding the professional’s job performance, a professional liability case may arise. This may occur when a lawyer loses a case for a client, an accountant makes an error on a financial form or an architect’s plans for a building do not encapsulate necessary safety features, as a few examples. When problems of this nature arise, the professional’s reputation and livelihood are at stake.

Dissatisfied clients may wish to pursue action against the professional’s license. However, this approach may not provide the results that will best serve their interests or the professionals’ interests. Through ADR, clients and the professionals whom they hire are often able to work together as a team to reach a solution that is tailored to meet their interests.

Mediation is a confidential process, so this allows the client and professional to speak more candidly without being afraid that their words will be used against them at a later proceeding. Often in professional liability cases, the underlying problem is the result of a miscommunication. Mediation allows the parties to talk through their problem to see how it arose and what contributed to it. Then, they can work together toward a resolution.

Mediation provides benefits to both parties and since it is based on collaboration, the parties are often able to maintain a relationship after a resolution is reached. Additionally, the parties are usually able to reach a solution faster than if they pursue their claim through another channel. This can allow the professional to proceed without worrying about his or her professional standing and for the client to be able to move forward. Additionally, the agreement that is reached is tailored to the specifics of the case and the parties’ interests, providing a more customized approach.

Effective Co-Parenting Techniques

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Going through a divorce is most difficult for the children. Conscientious parents who want what is best for them may take strides toward achieving a positive co-parenting relationship for the sake of their children. Some ways that parents can make the most of this difficult transition include the following:

Handle Difficult Emotions

Divorce can make a number of complex emotions to build up, including anger, sadness, grief, betrayal and fear. These feelings can emerge in the parents and their children. It is important that all parties be able to effectively communicate these emotions in order to work through them. Talking through these emotions honestly can often help aid families. The family may decide to talk through this information during mediation or in counseling. Once the parties are able to acknowledge these difficult emotions, they can discover ways on how to manage them.

Get on the Same Page

One of the most effective ways for parents to co-parent is to work together on a mutual agreement. Such an agreement can take into consideration several factors that can affect the family’s lives. This may include discussing how to handle living arrangements while a divorce action is pending, how holidays will be celebrated, how support will be allocated and other important issues and resolutions for short-term and long-term consideration. A mediator can help parents come up with an agreement that works best for all members of the family. Once these important decisions are decided, the parents can mutually communicate this plan to their children.

Help Each Other

Through the course of divorce and making the parenting plan, each spouse should strive to find ways to help the other. For example, the agreement can include a provision that takes into consideration the timing of when parents get out of work so that complying with the agreement does not pose a hardship. It can also include a provision that provides for a parent who has always participated in a certain extracurricular activity to remain active in this capacity. By helping each other, parents show that they can work together and depend on each other.

Defenses to Sexual Harassment Claims

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If an employer allows an employee to be sexually harassed, the employer can face substantial economic liability. However, proving a claim of this nature is often difficult. If an employee pursues a case in court, the employer may raise many defenses.

One of the most common ways for an employer to defend a sexual harassment claim is to show that the plaintiff has not met his or her burden. Simple teasing and isolated events are often not actionable. In order for an employee to recover with a lawsuit, he or she must show by a preponderance of the evidence that the harassment was so frequent or severe that it creates a hostile work environment or that it resulted in an adverse employment action. Showing that the harassment meets this level is often difficult because the employee must generally demonstrate that the harassment altered his or her terms and conditions of employment. An employee may not have proof of the harassing contact and the case may become a he-said/she-said.

Another common defense is that the employee did not take advantage of the sexual harassment policy by giving management the opportunity to adequately remedy the problem. An accused harassing party may even claim that the conduct was welcome and not offensive.

Many employers offer mediation to help resolve issues involving sexual harassment claims. This approach allows a mediator to analyze the claim and point out any weaknesses. This conversation is often completed in private away from the other party. If both parties realize the weaknesses of their side and how an adverse decision in court can affect them, the parties may be more likely to reach a settlement. This allows the parties to resolve the claim without having to litigate the matter in court and hoping that the jury finds the testimony and evidence to weigh more heavily on their side.