Tag Archives: Mediation

New Approach: Using Mediation to Resolve Toxic Tort Claims

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When contaminants are released into the air, water or soil, a large number of people may be affected. These legal cases are often difficult because many victims may be impacted but to varying degrees. Some people may have only suffered property damage while others may have suffered debilitating illnesses or even death. Using mediation to resolve these claims is often a prudent decision for all parties involved.

If litigated, cases of this nature often take the form of a class action. Such claims can be extremely long, potentially outlasting the lives of some of the parties involved. Further delays may be experienced by the parties as they go through the process of certifying the class. The costs of litigating these cases can often be exorbitant, potentially financially crippling the defendant and leaving many of the plaintiffs with little recovery after legal fees and costs.

Mediation tends to provide a more efficient manner to resolve such claims. Years of litigation can be condensed into one or a few mediation sessions.  Mediation also allows an individualized approach. Key claimants can determine how different victims will be compensated. For example, a tiered approach may be agreed upon, allowing for greater compensation to individuals who were impacted to a greater extent. Additionally, individualized solutions regarding compensation payments may also be determined, such as providing lump-sum payments to some claimants and periodic payments to others. In mediation, specific criteria may also be used to determine the level of damages that a claimant is entitled to. This process may result in some claimants being required to submit medical documentation that supported their claim for damages; while others may receive automatic payment based on the defendant’s admission that contamination occurred within a certain radius.

The Role of a Mediator in Unfair Competition Cases

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Allegations of unfair competition arise when competitors believe that they are subject to disadvantages that their counterparts are not subjected to. Other cases can arise when one competitor believes another intentionally took steps to harm it so that it would not be able to compete on the same level. In order to avoid the negative publicity of an unfair competition claim, some competitors may agree to mediate their claims.

The mediator plays a special role in such cases. His or her experience in commercial law or related cases can serve as an important role to assess the relative strengths and weaknesses of a case. This neutrality coupled with experience can help the parties realize the potential risks of proceeding with litigation and the advantages of using mediation to settle the dispute.

The mediator also helps to facilitate communication between the parties. Sometimes in such cases, the parties may be so at odds that they may not be able to have any type of peaceful conversation. The mediator can separate the parties and talk to each party one on one. This tactic allows the parties to fully express their side of the story, as well as to comment on what they believe to be the strengths of the case. The mediator can use this information to become better informed of the case and its likely outcome. At the same time, the mediator only shares information that the party says is fine to share with the other party, maintaining confidentiality when it is needed or giving the other side a glimpse into damaging evidence when warranted.

The mediator can also help the parties come up with potential solutions to their problems. He or she may deliver creative ideas that can get the parties to tailor a solution based on their particular business interests.

Why Should I Mediate a Wrongful Death Claim?

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A wrongful death case arises when a surviving family member or loved one brings a lawsuit against a party that the plaintiff believes was responsible for the death.  Most often, this type of lawsuit arises from negligent actions.  Mediation provides an effective forum to seek compensation for the loss of a loved one without having to go through the ordeal of litigation.

Emotions

A wrongful death case can be one of the most heart-wrenching cases to litigate.  Often, victims feel victimized twice: once by the actual loss of a loved one and second by the turmoil involved in litigation.  In litigation, the defendant denies any accountability for the death.  Additionally, cross-examination can be a grueling experience in which other parties or even the victim is blamed for the death.

Mediation provides a mechanism in which the surviving family member can share the feelings of anger, resentment, sadness, depression and confusion in a safe environment.  Mediators are specially trained to handle conflict and difficult situations.  Often, talking through this information with a mediator can be cathartic.  It can also help the victim focus on objective goals rather than on the raw emotions.  Although the defendant may have different emotions, these can also be addressed in mediation, providing a calmer and comforting experience for all parties involved.

Non-Binding

One surprising benefit of mediation in this context is that it is non-binding.  Either party can simply decide to walk away and continue with litigation.  This allows the parties to keep power in the situation and avoid being coerced into an agreement with which they are not satisfied.  Both parties must agree to be bound to any settlement agreement.

Certainty

A jury may provide a substantial economic award to the victim’s family to the defendant’s detriment.  It can also decide that the defendant was not at all at fault for the death.  The parties can both avoid uncertainty by reaching a settlement agreement.

Impact of Paternity on Other Decisions

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A paternity case often precedes other legal filings. In the case of a father wanting to disprove paternity, this action may come before a father’s action to recover support already paid or a divorce filing. For a father who wants to acknowledge paternity, the action may lead into other requests from the court, including:

Child Support

Once a father’s identity is revealed, he may then be pursued for child support from the mother or guardian of the child. Child support guidelines help determine the proper amount of support that should be paid. In many jurisdictions, child support is determined on a pro rata basis in which both parents incomes are added together and the noncustodial parent is then ordered to pay the amount of support based on his or her proportionate share of the total income.

Visitation

In states that observe visitation agreements, a paternity action is usually a precursor to a request to receive visitation rights. Most states treat child support separate from visitation agreements. This means that a father does not necessarily have the right to visitation by virtue of paying child support. Likewise, a father who does have visitation rights to his child usually cannot be denied visitation by the mother simply for not paying child support.

Parenting Plan

Many jurisdictions use parenting plans when a child’s parents are no longer together. Parenting plans are usually drafted after mediation or negotiations between the parties and their legal representatives. Jurisdictions prefer this method so that parents can help reach an agreement regarding their children without the court’s intervention. Parenting plans may include information about visitation dates, holiday sharing time, contact through phone and mail and other such matters related to the time with parents. Additionally, parenting plans may include information about school, education, religion, extracurricular activities and the child’s health.

Legal Separation Issues Prime for Mediation

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When parties have reached the conclusion that they would like to separate but are not quite ready for divorce, they may choose to get a legal separation. In many states, the date when a legal separation is issued can be very important because it may mean that other facets of a couple’s life are separated, such as income and property rights. Many times, a couple’s separation agreement may later be incorporated into the divorce agreement. When the parties are able to reach their own agreement, they can often save money from expensive legal fees. For this reason and others, mediation may be sought so that the parties become a proactive part of the agreement. Some provisions that spouses may wish to include in their separation agreement include:

Property Division

When this issue is litigated, both of the parties may wind up dissatisfied. Judges do not take sentimental value and other such factors into consideration. Instead, there is often a certain balance that must be achieved and each item is given a certain value. When the parties are able to mediate this issue, they can decide for themselves who should receive each item without the worry of losing property that is more personally valuable to them.

Parenting Plan

The sooner the parents can form an amicable relationship as co-parents, the better for the children. While courts often issue standard visitation and custody orders, parents are in a better situation to tailor a plan in a way that will work for them and take individual considerations into account, such as school activities and work schedules. They can also include more customized information in their parenting plan, such as visits with extended family, childcare arrangements, vacation notification policies and plans to address potential problems that may arise.

Creating a Co-parenting Plan that Works

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A co-parenting plan is a structured agreement that describes how two parents who are no longer together will raise the child. It contains information about visitation times and dates, as well as other information deemed important by the parents. Establishing an effective co-parenting plan can help lay out the critical information and avoid future conflict.

When drafting a co-parenting plan, it is especially important to use clear and unambiguous language. In case the parenting plan needs to be enforced, a judge must be able to read the specific provisions in question. Phrases such as “reasonable visitation” or “liberal visitation” will be more difficult to enforce because of their lack of precision. A well-defined schedule that details specific visitation dates and holiday plans is a better option.

It is important to include information about each provision that can be reasonably predicted to cause problems. This can vary in each case. However, it may include addressing issues regarding medical treatments, religious decisions, extracurricular activities and educational decisions. The parents might include a provision that requires mediation in the event that a dispute does arise.

One common point of contention in family law cases is a move by one of the parents, especially the parent who has more time with the child. A parenting plan may establish provisions regarding this issue, as well as related issues as out of state or out of country travel. In order to maximize access time with the child, the parents may also want to establish language that gives them the opportunity to care for the child if the other parent is to be gone during his or her normal time with the child.

Perhaps most importantly, a parenting plan should include language that adjusts visitation time with the child based on his or her age and developmental needs.

Options Regarding the Distribution of Real Property upon Divorce

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When a couple divorces, real property is often the most expensive asset that they have to divide.  The parties may not be aware of the different options concerning how to divide this property.  Some options may include:

Selling the Property

If neither spouse wants to keep the property or believes that they would be unable to afford to keep and maintain it, selling the property may be the best option.  Once the property is sold, the couple would split the proceeds.  The proportion that each spouse is entitled to depends on whether the property is community property or marital property, how much each party contributed to paying off the property or enhancing its value and any agreement between the spouses regarding this distribution.

Rent the Property

In down real estate markets, the spouses may agree to rent out the property.  The rental income may be used to offset spousal support or otherwise supplement one of the spouse’s incomes.  The couple may also agree to split the income between them.

Agree to Sell

The parties may agree to sell the property but at a later point in time.  This type of agreement may include more details and instructions, including a minimum amount that a spouse would be willing to accept for the sale of the property and which real estate agency or firm to use for the transaction.

Buy Out a Share

Another possible option is for one spouse to keep the property by buying the other spouse out of his or her share.  This may be accomplished by substituting assets that are of a similar value to the other spouse’s share of the home.  The spouse who will retain possession of the home is often required to refinance the property so that the other spouse is not still financially liable or linked to the property.