Tag Archives: Mediation

What Creative Solutions can be Used for Mediation of Contract Disputes?

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Mediation is particularly helpful in certain contexts when the parties have an established relationship that they want to preserve, such as in family disputes or disputes involving business people. Mediators use conflict resolution skills to help the parties understand the other side better and to communicate in a respectful way with the eventual hope of settling the case. Part of this process involves brainstorming creative solutions that can resolve the dispute. The parties are able to come up with nearly any solution that works for them and are not limited to typical judicial remedies. Some possible solutions include:

Revising the Contract

There may be issues that have arisen that were not originally contemplated at the beginning of the contract. The parties may decide to revise the contract to account for these changes. They may decide on a new level of compensation, scope of work or other details involved in the case. A mediator can walk through the issues that have arisen and help the parties consider different options to resolve their dispute so that they both leave with a mutually satisfactory agreement.

Making a Trade

The parties may be able to make an important trade off. Mediators can help uncover the underlying interests of the parties. By exchanging one thing of value for another can often help the parties both walk away satisfied with the result.

Alternative Forms of Compensation

Many business disputes reach a stalemate because neither business person wants to pay more money. However, during a brainstorming session, one possible solution is to provide alternative forms of compensation. This may include offering stock options, profit sharing, a new contract, a recommendation, services in line with the typical offerings of the business or something else that may not be a direct payment of cash from one business to the other.

Negotiating Community Property Settlements

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When a couple is going through the divorce process, they may not agree about issues related to community property. Mediation and arbitration are two alternatives to litigation that allow the parties to reach a resolution to these issues. While the process for them are different, mediation and arbitration are often much cheaper than trying to sort out the issues through litigation. They are also cheaper than litigating the case. Some issues related to community property may be:

The Identification of Community Property

The spouses may not agree as which property is community property. The spouses may not agree about when property was acquired, with one believing that it was acquired before the marriage and the other thinking it was a joint purchase. One spouse may argue that the property was purchased with separate funds and not subject to community property principles. A mediator can help the parties determine which property should really be at the heart of the dispute. An arbitrator may be more interested in evaluating proof regarding the purchase date to determine a fair solution.

Morphing Community Property

Community property may change in time when the couples move from a community property state to an equitable distribution state or vice versa. A mediator can explain how the state has resolved similar issues in previous cases to give the parties a better idea about the strengths of their claims. An arbitrator can apply the law to determine how to classify the property.

Division of Community Property

The parties may be at odds about how to divide the community property, especially when dealing with assets of more value. One party may want to sell the property while the other wants to retain it. Mediators and arbitrators can help flesh out these issues and help the parties find a resolution.

What to Expect from Commodities Mediation

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Although mediation has been around for several decades, it continues to expand into new and exciting areas. Commodities matters may involve issues related to futures such as making investments based on ideas related to the future market prices of the investments. Mediation may be used to resolve issues related to future investments, claims against introducing brokers, merchant commission, allegations regarding misrepresentations or omissions of material facts, providing unsuitable investment advice, conflicts of interest and other matters involved with commodities.

In mediation, the parties agree to meet with the help of an unbiased mediator who may have special training in the topics. In addition to this special knowledge, the mediator also has a special background in conflict resolution and communication training. He or she can often communicate in a way that the parties have not encountered so that he or she can understand the source of the conflict, realize what the parties are after and assess what possible solutions the parties may agree to.

The parties benefit from the mediation process because they get to see their case from a neutral perspective and can realize the possible alternatives if they do not reach a settlement on their own terms through mediation. They also have access to the other party and the ability to negotiate a settlement directly rather than waiting for a remedy furnished by a judge or jury who are not familiar with the parties.

Because many people working in commodities rely on ongoing relationships, mediation can help the parties approach the problem in a more cordial manner that is more likely to preserve relationships. While parties involved in litigation or arbitration will likely terminate their relationship, those involved in mediation may be more likely to maintain this relationship and maybe even strengthen it so that it can lead to new business dealings in the future.

Utilizing the Mediation Process in Collection Cases

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Mediation can be used in a number of cases as an effective and affordable way to resolve conflict. This method can be used in collection cases as a way to help debtors and creditors find middle ground and come up with a solution that benefits both of them. At the end of successful mediation, the parties can have a new agreement in place that is enforceable as a separate contract.

Litigation is expensive and time-consuming. Both parties often hire attorneys and must then pay the legal expenses associated with prosecuting or defending claims. Litigation is also public, often leading to embarrassment to one or both parties. Even if one of the parties wins at court, it must then pursue separate enforcement action in order to secure funds to pay off the debt. Debtors may be entitled to certain exemptions that represents property that creditors cannot attach to a judgment.

Mediation is a way to resolve issues outside of court. The parties work together instead of as adversaries, attempting to reach a mutually-satisfactory solution. The parties may communicate directly or with a mediator going back and forth to take different ideas and possible settlement solutions to the parties.

Mediation allows the parties to exercise more creativity as the parties are generally free to reach any legal resolution to their claim. The mediator may encourage the parties to brainstorm possible ideas. The parties may come up with a number of different solutions, such as paying off a fraction of the total debt, allowing a forbearance on debt payments until a certain amount of time passes or making smaller payments for an extended period of time. Mediation helps the parties save time and avoid the expenses related to litigation.

ADR of Cannabis Issues

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With more states legalizing cannabis for medicinal or recreational purposes, there are more cannabis legal issues that are arising. In the marijuana industry, there are a number of new business relationships that have developed in a short period of time, including distribution deals, partnerships and licensing relationships. Like in all other types of business dealings, the potential for disputes to arise between partners, competitors or parties working together is present. Conflict can arise in this context as well as in others, such as issues involving legal cannabis use and employment and housing matters.

Due to the new nature of this industry, many individuals and businesses are choosing to use ADR instead of litigating when troubles arise. Courts are often slow to change and may support traditional commercial businesses rather than individuals or businesses that they perceive as being invested in the “pot” frenzy. Another reason why individuals may steer clear of the court for resolution is because judges and juries might punish both parties when they do not like them. To avoid these negative possibilities, parties are increasingly adding mediation and arbitration clauses in their contracts.

Mediation involves the parties meeting with a third party neutral who hears both sides of the dispute and tries to help the parties reach a resolution. The mediator does not impose any type of decision on the parties. Instead, he or she helps the parties negotiate between themselves so that they can avoid court.

Arbitration puts the decision-making authority in the hands of a decision maker that the parties have selected. This helps them select someone who is not prejudiced against cannabis. The arbitrator may have additional subject matter expertise based on a history of creating licensing deals or litigating contract issues.

When Art and Mediation Collide

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Statue of Lady Justice in front of the Romer in Frankfurt - GermMediation continues to grow and evolve as more professionals realize the benefits of this process. The art world is only one of many applications of this process. Knowing about the possible applications of this method and how it works can help individuals, organizations and businesses involved with these issues.

Art Issues Handled in Mediation

The art industry may grapple with a number of different issues. One such issue involving this industry includes ownership disputes. This can occur when certain groups have been pillaged or had their work stolen and sold to the highest bidder. There may be restitution claims for artwork and other cultural misappropriation. Art associations may require mediation services in order to establish terms related to the acquisition of artwork, loans or deposits. Likewise, mediation may be helpful in the realm of licensing.

Mediation Process

Mediation is a voluntary process in which the parties agree to negotiate in good faith. With the help of a professional mediator, they are often able to resolve their claims in a positive manner. The mediator can be selected from a group of mediators that serve clients in the jurisdiction so that his or her expertise in the art world can stand out against other mediators. The focus of mediation is on getting the parties to reach an agreement by communicating directly with each other or through the mediator. These methods can help the parties get a better understanding of the parties’ positions and interests. Mediation allows parties to negotiate in a confidential manner while also controlling the procedure. The parties are not required to reach an agreement, but most cases do result in a settlement because the parties are able to realize the benefits of this process and in settling the case through a mutually satisfactory agreement.

Civil Rights Cases that Can Be Mediated

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Business HandshakeMediation is used in a number of different contexts, including employment law and other matters in which civil rights may be implicated. When the participants are willing to confront the issues together, they can often reach an agreeable resolution of the claim. Some of the claims that may be successfully mediated include:

Disability Accommodations

Employers and public accommodations that do not provide reasonable accommodations to individuals with disabilities may face civil rights violations. Mediation can help educate employers about possible ways that they may be able to adjust in order to keep a skilled employee at the company. Possible solutions may include changing the employee’s shift, adjusting job duties, providing appropriate tools or making other changes in the workplace. A compromise that parties may make in mediation is for the employer to provide training for managers on reasonable accommodation and leave policies.

Discrimination

Discrimination on the basis of sex, color, national origin, religion or race is prohibited by federal law. States may provide greater protections based on other protected characteristics. If a person is refused employment or accommodation due to protected factors, they may have a cognizable claim. Such liability can arise when an employer fails to hire, fails to train or fails to promote an employee because of these reasons. Likewise, if he or she terminates an employee for these reasons, the employee may have a civil rights claim.

Harassment

The employer generally has the responsibility to keep the workplace harassment-free. If the harassment is based on protected characteristics, the employer may be sued for creating a hostile work environment. Mediation may be able to help address problems associated with harassment. If the employee was forced to quit, part of the settlement may be to provide the employee with a job recommendation.

Retaliation

Even if an employer’s conduct was not discriminatory in nature, if it takes adverse action against an employer because he or she filed a complaint, the employer may be at the receiving end of a discrimination claim.