Tag Archives: Mediation

Resolving Church Disputes through ADR

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Black Wooden church in autumn in Budir, IcelandMany churches discourage the use of lawsuits to resolve a dispute.  However, conflict may arise in the religious setting, such as disagreements between parishioners, issues between churches, purchases that church administrators make that others may disagree with or other disputes that arise that affect the church or parishioners.  Mediation often advances the goal of the religious institution and can help to successfully resolve disputes.  Mediators help those in conflict in church disputes in the following way:

Respect Religion

Mediators are trained in conflict dispute resolution.  They understand that a party’s religious and cultural values often help inform his or her thoughts in dispute.  The mediator can acknowledge these values and use them in a positive manner to appeal to the parties’ needs and interests.

Discourage Escape Tactics

Sometimes people in conflict use escape tactics to avoid conflict.  They may blame the other party or declare that they simply will not be involved in whatever the issue is.  A mediator can guide parties away from these reflexive declarations and encourage them to confront the conflict head on.  A mediator can explain that conflict provides an opportunity for the parties to come together and work out a solution that works for all parties involved.

Uncover Important Information

Mediators ask clarifying questions and dig for information.  This helps them understand what led to the conflict and to identify what the parties’ interests are.  Once the mediator has this information, he or she can use it to appeal to the parties’ desire to resolve the conflict while addressing these interests.

Promote Personal Responsibility

Mediators can communicate with each party individually and encourage the party to consider how he or she contributed to the issue and what he or she can do to help resolve the conflict.

Settlement Considerations of Negligence Cases

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Parties who are injured because of car accidents, slips and falls, defective products or other accidents may decide to litigate their case.  The defendant or the victim’s legal counsel may recommend the process of mediation to defray some of the costs involved in litigation and to speed up recovery of financial compensation.  Some of the following factors may impact the willingness of the parties to settle the case in mediation:

Expectations

It is not uncommon for injury victims to have an outlandish idea about the value of their case.  They may have heard news stories where multi-million dollar verdicts were issued.  However, this is not the norm.  Likewise, an insurance company may believe that it will prevail on a particular claim only to discover later that a jury holds its insured responsible.  If both parties enter mediation with a realistic expectation regarding the potential value of the case, they will be more likely to settle their claim.

Worst Case Scenario

It can also be helpful to the parties to consider the worst case scenario.  For the victim, this may be to recover nothing on the case.  For the defendant, it may be to receive a judgment against it for a sizable amount.  This can help the parties determine whether it is in their best interest to settle the case or to take a chance with a trial.

Recent Decisions

The parties may consider recent decisions made in the same venue to try to predict how a judge or jury may rule in a particular case.  It may also look at how similar issues were decided in recent cases, such as questions regarding causation or contributory negligence.

Elements and Defenses of a Negligence Claim

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Gavel and Stethoscope on Gradated Background with Selective Focus.There are four basic elements to a negligence claim.  These and possible defenses to them are discussed below.

Duty

This element requires the victim to establish that the defendant owed the defendant a certain duty of care.  This may be due to a relationship between the parties, such as doctor and patient or product manufacturer or consumer.  A defense to this element may be that there was not such a relationship between the parties.

Breach of Duty

The victim must establish that the defendant breached his or her duty of care.  This may be established by showing how the defendant’s conduct rose to the level of negligence.  In a car accident case, this may be because of violating a traffic law.  In a slip and fall case, this may be due to not inspecting the area for hazards.  Defenses to this element are often the most common.  The insurance company may try to say the victim contributed to the accident or that the defendant acted within the proper standard of care.

Causation

This element requires the victim to establish the link between the defendant’s breach of duty and the victim’s injuries.  For example, the defendant’s act of speeding may have caused him or her to collide with the victim’s vehicle.  The defense may argue that the injures were pre-existing or were caused by another factor.

Damages

The victim must show that he or she was injured.  The defense to this element may be that the victim’s injuries are exaggerated or were not incurred in the accident.

The Anatomy of Auto Accident Mediation

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Depositphotos_36839587_s-2015Auto accident mediation is a confidential and voluntary way to potentially resolve an auto accident claim.  The victim and the insurance company may attend mediation with a trained third-party neutral who facilitates discussion and guides the parties during the process.  Typical auto accident mediation includes the following steps:

Select a Mediator

The parties can select a mediator.  Many personal injury mediators are lawyers or retired judges.  However, mediators may also come from different backgrounds, such as being former insurance adjusters, business people or educators.  The parties and the mediator set up a convenient time to mediate the case.

Introduction

When the parties arrive at mediation, the mediator explains his or her role.  He or she explains the differences in a judge and a mediator.  The mediator does not impose decisions on the parties.  He or she cannot make the parties do anything.  The parties are free to agree to suggestions or not.  The parties retain control over the outcome of the case.

After explaining this important role, the mediator then explains that he or she is objective and does not represent the interests of either party.  He or she may summarize the facts of the case as presented in pre-mediation briefs or mediation statements.  He or she may also pinpoint the specific areas of contention noted in these materials.

After the mediator speaks, the parties may make a brief introductory statement about the accident, how it occurred and why they have not reached a settlement.

Negotiations

The parties may be separated during the next phase of mediation.  The mediator may go back and forth between the parties, getting a better sense of the strengths and weaknesses of each side.  The mediator relays information back and forth between the parties and may make suggestions on facilitating a compromise.  The mediator may also take settlement offers back and forth, often starting low with the insurance company’s offer but possibly moving higher during the course of mediation.

Agreement

If the parties do settle the case, they will have an agreement prepared that outlines the terms they agreed to.  The insurance company will usually ask the parties to sign a statement that they are releasing all claims in consideration of the settlement money.

Formulating a Child Safety Plan in Foster Care Mediation

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Many children are placed in foster care after Child Protective Services or a similar agency removes them from their natural home because of concerns about the child’s safety or wellbeing.  This can often launch a daunting legal proceeding in which parents must prove they have remedied the situation so that the children can be returned to a safe environment.  Mediation can be used as an alternative to this formal and stressful litigated process.

The mediation process is a voluntary process that involves the parties working together with a neutral third party who is skilled at conflict resolution.  The parties work together to form a safety plan that is in the best interests of the child.  This process can help the parties avoid adversarial court battles while being an inherent part of the solution.

Mediation allows the parties to work together to create a child safety plan that is tailored to the unique needs of the family.  Rather than pitting biological parents and foster parents against each other, the process brings them together to work together toward mutual goals.  The parties can have objective focus on what is best for the children and use this focus to guide the process.  Because the parties are part of the solution, they can all feel that they have accomplished meaningful goals by working together rather than making parents feel that they are deficient or are being judged.  Additionally, because the parties help come up with the plan, they are more likely to make strides towards accomplishing the objectives in the plan and to comply with it since they had a hand in drafting it.

Having a child-centered focus that is based on collaboration between the parties can serve as an effective alternative to litigation that addresses child protection cases to the benefit of all parties concerned.

Using Mediation in Foster Care Cases

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Mediation is an effective tool when dealing with family law issues.  In the last few years, the use of mediation in foster care, adoption and dependency and neglect cases has risen exponentially.   More communities recognize the efficacy of this tool, spurring them to adopt new mediation programs to address these issues.  The traditional adversarial process involved in foster care and child protection cases often has inherent shortcomings that do not serve the best interests of the child or the parties involved.  As such, mediation provides an effective alternative.

In mediation, the parties can freely discuss the issues that are important to them.  The process is confidential, so they do not have to worry about saying things that can be used against them in court.   Biological parents and foster parents may have grievances to air and concerns they wish to address, such as drug problems, discipline issues or a lack of contact.  They can also communicate about difficult emotions in a safe environment.  Meanwhile, attorneys involved can work together to solve the unique problems facing the family in an honest and candid manner without being concerned about how these issues will reflect on their clients in a court setting.

Foster care mediation involves specially trained objective professionals who help facilitate communication between the parties.  Other people concerned about the child’s welfare may also be brought into the conversation, such as social workers or extended family members.  During the mediation process, the mediator helps identify issues that need to be resolved.  He or she then helps the parties solve these problems.  Solutions may involve creating a safety plan, establishing a visitation schedule, considering how to address financial needs and other creative solutions.  If the parties are able to reach an agreement, this agreement is memorialized in writing.

The Mediation of Libel or Defamation Claims

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Libel or defamation cases may arise when someone says something negative about another person such as a business owner that has an adverse effect on his or her reputation. This statement may even be in written form, such as a publication made to the media or a negative review of services. Businesses are particularly concerned about their public image because a negative interaction can cost them business from others down the line. When parties confront these legal challenges, they may decide to litigate the case, or they may decide to mediate it.

There are important differences between mediation and litigation. In litigation, the issues become very public. This can be a significant drawback in defamation cases that arise because of negative publicity. Having the case litigated in court may make the matter even more public and bring more exposure to the case. Mediation is confidential and private. What is discussed is not shared with the outside world. This helps preserve the privacy of the parties.

Litigation has limited remedies available to the parties. It can order a defendant to stop saying negative things about the plaintiff, but if the defendant fails to do so, the parties usually wind back up in court. The court can order the defendant to pay damages to make the plaintiff whole after taking a hit to his or her professional credibility, but then the plaintiff has to try to enforce the judgment, which is often a long and difficult process. Mediation can help the parties resolve a problem much faster than traditional litigation. Additionally, the solutions are often much faster, such as the parties agreeing not to say negative things about each other in public. Mediation can also save the defendant from the potential risk of being ordered to pay sizable damages.