Tag: Mediation

Neutrality in Mediation: How Does That Really Work?

Posted by rainmakereditor on January 7, 2019 with 0 Comment

Mediation is one of the most popular forms of alternative dispute resolution today, yielding great success rates over classic litigation. Many parties—especially business owners—who would have ended up in the courtroom otherwise are relieved to find that they can resolve their differences in a more affordable and casual atmosphere, sometimes even able to meet with the mediator during weeknights or on weekends to work around busy schedules.

The success of mediation centers around the willingness of the disputing parties to compromise and reach an agreement, but the mediator plays a starring role in helping the process move along, from meeting with everyone beforehand to understand their issues, helping to prod the discussion along when there may be a stalemate, as well as drafting all the necessary documents for the court in the end. This is not a venue, however, where the mediator performs any of the decision-making.

Styles may vary when it comes to mediators, but neutrality is key. As the third party in the room, the mediator also has a responsibility to create an air of safety for opinionated discourse about the topic that has landed the individuals present in dispute. It is also vital that the primary individuals involved in the dispute (and authorized to sign off on the agreement) are present and engaged in the mediation, with the understanding that the mediator does not have a stake in either side. For them to take a side would severely disrupt the mediation, along with the credibility of the mediator—and the process itself.

Relying on the neutral mediator to keep the process flowing smoothly means that much of the adversarial quality is removed from the case, as well as the constant focus on blame. Instead, both parties face each other instead of a constant focus on ‘telling it to the judge.’ While some cases may be better resolved through litigation, those who agree to or seek out mediation often do so because they are interested in protecting a long-term relationship, which may not only be an investment in friendship and partnership, but also financial as well. You may be involved in a mediation which involves a vendor or a contractor who you may hope to continue working with later despite current conflict.

The Bolender Law Firm will advocate on behalf of clients through litigation, arbitration, or non-binding mediation. Our attorneys are experienced in representing clients in state and federal courts, at both the trial and appellate level. Call us at 310-320-0725 now or submit an easy consultation request online. We are here to help!

Mediation: The Main Parties Involved Must Show Up

Posted by rainmakereditor on December 20, 2018 with 0 Comment

Mediation relies on all disputing parties getting together in one room to discuss an issue that could have ended up in the courtroom first. In turning to alternative dispute resolution, the hope is usually that a more relaxed venue will lead to better success in reaching an agreement and/or settlement; in fact, most mediations are successful. The key is everyone working together and being motivated to do so.

This begins at the hands of the mediator, who will usually interview both parties separately. As they do so, the goal is to delve as deeply as possible into the details of the dispute with everyone involved. While they will note all the details of the case in hopes to gain a comprehensive understanding of it, they also must consider the best techniques for reaching a resolution. Every case is not a one size fit all situation, and experienced mediators will shape the process appropriately after gleaning out the all the facts and creating a more intense focus on what the real issue is, and what should be discussed at length. Along with this, they can offer a more casual atmosphere and schedule, which is usually much appreciated by business owners who may not only be stressed out by a legal dispute but wondering how they can find a resolution when their schedules are so rigorous.

In a classic business litigation scenario, it may be normal to have your attorney do all the legwork and the negotiating; however, in a successful mediation, your input and presence is necessary (even though you may be consulting with your attorney during the process) as you and the other parties are able to meet in person and in a neutral atmosphere. The goal is for everyone to find a way to move forward, and in many cases save both business and personal relationships that may have been long-standing and are viewed as valuable for the future too.

All involved and authorized parties should be available during mediation so that the process runs smoothly, with a settlement agreement being reached and documented by the mediator. Once this happens, all authorized parties should be available to sign the settlement drafted by the mediator, making it a legally binding agreement that everyone must follow through on afterward.

Mediation Topics: Alternative Dispute Resolution or Court?

Posted by rainmakereditor on December 6, 2018 with 0 Comment

In some cases (many of which can be resolved with alternative dispute resolution), a legal dispute may erupt in a flash, whether due to an act of negligence, accident, or other incident that pits two or more parties against each other. Other times, legal action may be the culmination of a relationship that has been going south for quite some time; for example, if you are a business owner, you may have issues with a vendor who has been supplying building sites with materials for years if you are a contractor—or perhaps food inventory if you own a restaurant. A business partner whom you founded your company with decades ago may have become resentful over certain issues, or desire complete dissolution of their part in the company. There could be disputes with employees, breach of contract issues with those working full-time or as independent contractors, or issues that arise with other businesses—and perhaps those that are owned by industry peers.

Led by a neutral mediator (often trained in an area relevant to your dispute) who guides the disputing parties in reaching an agreement and/or settlement, the mediation process allows the disputing parties to have an open discussion without the adversarial atmosphere so common to the courtroom. Mediation is also much more conducive to saving relationships that one party or the other may not want to see disappear. That could be due to personal relationships or an ongoing profitable relationship. This type of alternative dispute resolution should work well if you seek a more voluntary and relaxed atmosphere that is also conducted behind closed doors and kept confidential. Although mediation requires time and patience, and commitment to the process of reaching resolution, it is usually exponentially faster than litigation.

If you think a jury trial would be better for the type of legal dispute you are engaged in, however, mediation is not the way to go as juries are not allowed. Discovery and presenting of any evidence are limited, and no court transcription is performed during the process. If you want someone else to decide the case, mediation is not the best option either as this type of alternative dispute resolution means that you and the other parties are put together to reach a resolution with the guidance of the mediator, who is also not there to represent either party or give anyone involved legal advice.

Mediation May Lessen Legal Vulnerability for the Small Business

Posted by rainmakereditor on November 27, 2018 with 0 Comment

While litigation may be extremely effective—and required—to resolve a wide range of disputes, many business owners who have never been involved in a legal issue before are surprised to find that alternative dispute resolution is not only available as an option but yields success in most cases where it is used. Mediation may be required by the court for some types of civil cases, such as divorce, but if you are considering using this type of ADR as a business owner, chances are you are doing so voluntarily.

For the small business, mediation can be a serious benefit. A long and drawn-out court case could be enough to bankrupt some companies—and especially if an outrageous settlement is required at the end on their part. If you are having a dispute currently, you probably want it to end as quickly and as quietly as possible, whether the problem is with another business owner or a supplier, or perhaps someone who works for you whether they are full-time or were hired on as an independent contractor. The dispute may be over a financial matter, or other issues such as rights to intellectual property.

Mediation offers a more relaxed and affordable (in comparison to litigation) way to reach a resolution, all of which is positive for the small business owner. The mediator can usually offer flexible scheduling too, which is in stark comparison to litigation where the court docket may be so full that the case is not heard for months, could be continued, and re-scheduling means even further, extensive delays. In mediation, cases are resolved much more swiftly—even in the matter of an afternoon for some.

Preservation of relationships is also key for many newer and smaller businesses, and this is one of the most substantial advantages in mediation. Just the fact that everyone has agreed to alternative dispute resolution is a sign of their willingness to work the problems out. This could be for many reasons, but often may be due to a working or personal relationship you have had for years and do not want to destroy, or because you and the other party have the potential to keep working together in the future even though there has been a serious dispute; in fact, the process may improve your relationship with the other party enormously, as many problem-solving skills taken from mediation help participants far beyond the mediation.

Why You May Want the Other Side to Choose Your Mediator

Posted by rainmakereditor on November 23, 2018 with 0 Comment

The business world can be extremely rewarding, but also harsh. As the owner of a company—whether it is large or small—your responsibilities may be vast. There may a substantial number of employees, requiring formal policies and procedures to be followed, and support from human resources. Finances and accounting play a major role. Orders must be made, suppliers must be paid. Most days are full of small triumphs, and sometimes massive headaches. Above all though, customers must keep rolling in the door!

For those involved in new startups, there is little time for anything else except work, which makes life especially challenging in the face of a legal dispute. This can be even more devastating if it comes from within the company due to an employee or a partner’s dissatisfaction, or from another business, vendor, or even a client. Entering into a hostile courtroom scene with litigation may seem like an extremely unpleasant venture as well as an unnecessary one in many cases—and because of this, many who discover mediation as an option are pleasantly surprised.

When both parties agree on mediation, it is obvious they want resolution, and often this is because of a partnership or a working relationship that has been long-standing and valuable, and is one that everyone wants to attempt to preserve. It may also be true that the relationship was an extremely profitable one over the years, and no one wants to see a financial loss (not to mention the expenses of litigation).

The key to mediation is neutrality on the part of the mediator leading the sessions, and success is usually due to the relaxed atmosphere, affording greater flexibility in scheduling, and allowing the two parties in dispute to reach a settlement decision themselves. As an act of good faith, and to get off on a friendlier foot, one party will offer the other the chance to choose the mediator. They may want to have interviews with several mediators and although there could be some disagreement if the mediator chosen seems inappropriate, allowing the other party to have control initially is a good way to start.

Although the mediator may be an expert in the field in which the dispute is centered around, what is most needed is experience in alternative dispute resolution and a persistent personality that will allow them to keep the disputing parties on track. This often requires taking a different tack or using a different technique if everyone reaches an impasse. Once an agreement is reached, the mediator is responsible for drafting all documents to be signed. These may or may not be passed on to attorneys for approval, but once they are signed by authorized parties and given to the court, everyone involved is beholden to a binding agreement and must begin doing their part as outlined in the settlement.

Opening the Conversation: Mediation Allows for Greater Ease in Business Resolution

Posted by rainmakereditor on November 20, 2018 with 0 Comment

If you are a business owner in the US, the profits may be good, but your days may always seem to run in a deficit, without quite enough hours to get everything done–much less trying to figure out a business resolution with a sparring industry peer or employee. From continually figuring out ways to bring in new customers to managing the finances and a team of employees, you already have your work cut out for you. Whether you have been operating your own company for decades or are just starting out as an entrepreneur, the marketplace is competitive, and over time legal disputes may arise. Some may just call that the price of doing business, but the stress involved with an ongoing conflict—whether that be with another business, a supplier, a contractor, employer, or another entity you may have worked quite closely with—can be enormous.

If this is the first time you have been presented with a legal issue, you may be relieved to find out that you can try to resolve it in a more relaxed setting. Mediation offers a long list of benefits to all parties involved, and the very fact that you are all in agreement to work on a settlement using alternative dispute resolution shows motivation. The process usually begins with the mediator opening the conversation privately with each party, so they have a full understanding of what the dispute is about. And although many mediators have different styles overall, they may choose one mediation technique over another as it suits your case.

The mediator must remain neutral, and their role is to help you and the other parties come to an agreement yourselves; were they to side against one party, the process would be much less effective—not to mention confusing for the party being ‘decided’ against. With neutrality in place, the mediator can help both parties think outside of the box for resolution if they have reached a stalemate.

In most cases, mediation is successful because everyone involved wants it to work, they take the time to understand the other point of view, and the third-party (mediator) may be able to interject reality into the issue more effectively than the two parties could while in an adversarial stance. This is usually because of a long-standing—and in many cases—profitable business relationship that no one wants to see destroyed. Mediation is usually also much more affordable, scheduling is easier, and the outcome is reached much more quickly.

The Mediator is a Facilitator—Not a Judge

Posted by rainmakereditor on November 7, 2018 with 0 Comment

Mediation is a popular form of alternative dispute resolution (ADR) for parties engaged in a wide range of different lawsuits or issues. In some legal cases in California (and other states too), the courts may even require mediation as an intermediary measure. You may have experienced this previously during a divorce or other civil proceeding; however, most mediations are voluntary and that is often the secret behind their success.

Neutrality is Central to Mediation

And while there are many pros to outweigh the cons of mediation, neutrality on the part of the mediator is one of the biggest benefits. The mediator could indeed be an attorney or a retired legal professional (although they do not require a license and may even be specialized in other areas that are of help to your case) but in a mediation these professionals are required to maintain a completely neutral demeanor, working with you and the other parties involved to assist you in reaching an agreement.

Voluntary mediations are often quite successful for business owners who may have become involved in a dispute with another company or merchant, a vendor who provides continual supplies, full-time employees, independent contractors, and more. If you are involved in such a scenario, mediation may become an attractive alternative to litigation for many reasons. Most importantly, if this is a long-standing working relationship, mediation may be a way to resolve the problem and even allow you to continue working together later. At the very least, the adversarial quality may be removed from the process, allowing for a more frank and relaxed discussion of the issues at hand. The mediator is there to help you and other disputing parties take a closer look at the reasons for the disagreement, as well as keeping everyone focused.

The Mediator Does Not Decide the Case

If a stalemate seems to be occurring, the mediator will often have to come up with more creative ways to keep the mediation moving along. Their role is not to decide the case, but rather to make sure both sides understand all the details of the dispute, allow everyone to be heard, and examine all the available options. Once an agreement has been reached and the mediator drafts and has all the required documents signed, the process is considered binding—with all parties involved beholden to keeping up their end of the settlement.

Other benefits to mediation include greater affordability, speed in reaching resolution (this could be just a matter of hours, instead of days or weeks expended in the courtroom), and confidentiality.

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Mediation Can Be Much More Successful—and Less Stressful

Posted by Jeffrey Bolender on September 12, 2018 with 0 Comment

Businesses thrive on structure. The established team needs to show up, do their part, and keep the customers happy and coming back. As the owner or manager, however, your day probably includes a long, complex list of duties to be checked off from beginning to end. There are the finances to deal with, employee schedules and requests, meetings, inventory issues, marketing campaigns, and so much more. The last thing you need is a legal conflict, whether it involves an issue with an employee, a business partner, vendor, or another commercial entity you are butting heads with.

Mediation Offers Respite from the Clogged Court System

No matter which side you are on, heading into a court battle can be intimidating—and it may take a long time to reach a resolution; to begin with, your court date may be months ahead. After that, you could be forced to deal with continuances, appeals, and more. Most of us become frustrated with the crowded calendars, inflexibility in scheduling, and so much more. The truth is though that judges and court administrators are often doing all they can to eliminate clogging in the courtrooms. Many cases may be directed toward other methods of resolution such as arbitration or mediation, or they may be voluntary.

Mediation is popular for many parties engaged in conflict as they realize even in the throes of a dispute that they may not want to destroy a long-term relationship. The key is not so much in ‘winning.’ but reaching an agreement that both parties can live with. The setting tends to be much more casual, and mediators are usually able to work around the schedules of everyone involved; in fact, they may even agree to hold mediations on Saturday or Sunday, or after work hours during the week.

The Mediator Guides the Parties to Reach a Resolution

The relaxed atmosphere, combined with neutral assistance from the mediator, allows for most mediations to be successful. In a voluntary mediation, the mediator often makes a point to meet with the parties separately, before proceedings begin, to gain an understanding of the main issue and to begin formulating a path for resolution. The mediator does not decide the case but is tasked with keeping the disputing parties on course and helping them think outside the box when necessary, to attain their end goals. Once an agreement has been reached, the mediator is responsible for drawing up the documents to be signed—and once they are, the mediation is considered enforceable with all parties expected to hold up their ends of the bargain.

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Mediation Enforceability: What Affects This?

Posted by Jeffrey Bolender on September 10, 2018 with 0 Comment

Although mediation has been a popular form of dispute resolution for decades, many parties involved in legal issues are surprised not only to find out that the process is available as an alternative to litigation, but also that Mediation Enforceability is possible. Whether or not you have ever actually been in a courtroom, you probably have a good idea about how formal the setting is, and know that it can be a long and drawn-out, expensive endeavor—not to mention stressful.

Many court dockets are so heavily packed today that mediation (along with arbitration) is encouraged, and in some cases, it is a required part of the process. Mediators are expected to work with the parties, who in business disputes are often extremely motivated to reach a compromise not only so that settlement figures don’t reach exorbitant highs, but also because they may have enjoyed a long-term (and lucrative) relationship that they do not want to see go south. Disputes may be with internal business associates such as employees, managers, or partners, or they may be with vendors, other business owners, or commercial entities.

The setting for mediation is much more relaxed than the courtroom, the cost can sometimes be exponentially less, and scheduling is so much more flexible that the parties involved may be able to meet after hours or on weekends. In voluntary mediation especially too, the mediators can take the time needed to learn about the case, often meeting with the parties ahead of time to gather details and begin thinking about the best approach for that mediation.

There are some who question the enforceability of mediation; however, if an agreement is reached by the parties originally in dispute, and all the proper documents are signed, it is considered enforceable. This means it is indeed recognized in a court of law and everyone is beholden to the details of the settlement. The mediator is usually responsible for drawing up the agreement, although in some cases attorneys for either or both parties may review the documents or draw up even more formal legal documents following the mediation. If any of the information in the final mediation documents is later challenged successfully, the mediation could be proven unenforceable.