Mediation? Arbitration?

{4:12 minutes to read} Med-Arb Clauses in contracts specify mediation before arbitration in disputes.When arbitration first became popular, it was seen as an antidote to the time and expense of litigation. Parties could bypass the lengthy court process, narrow the issues, limit discovery, and hire experts to decide disputes. Arbitration also kept disputes private, making it less likely the terms of a settlement or adverse decision would become public.

However, over the past 10 years, arbitration has begun to lose some of its luster for several reasons. Most well-known are the compulsory arbitration clauses found in consumer contracts (e.g., “Click here if you agree with the terms and conditions…”) that are often seen as unfairly favoring parties with greater economic power and limiting the ability to redress legitimate grievances.

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Condo Association Warfare

Condo Association Warfare by Gary Shaffer

{4:30 minutes to read} A friend recently told me about a situation involving her neighbor at the condo development where she lives. She and the neighbor were never close friends, but they were friendly toward each other, saying hello and chatting when they would see one another.

About a year ago, however, things began to change. The flowers my friend had planted in her front yard for several years were now not to her neighbor’s liking. And the awning that provided shade on the rear of my friend’s unit, which faces west and can get hot in the summer, was suddenly a violation of the condo rules. The awning had been up for about seven years.

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Family Disputes: Selling the Family Home

{3:54 minutes to read} Our mental attics can store lots of emotional content when it comes to a family home. For Family Disputes: Selling The Family Home by Gary Shaffermany families, selling that home may be sad, but not otherwise a source of contention. It can even be a relief. But for others, selling the home can create conflict. While there can be an almost infinite source of such conflicts, mediation can provide a way to ease or even resolve them.

Money and emotion are almost always intertwined in a dispute over the family home, and any attempt at resolution must address both. Ideally, the issue is addressed before a dispute arises:

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Mediating Family Business Disputes

{3:42 minutes to read} In my previous blog post on this topic, I described some of the general issues that arise  What Would a Successful Family Mediation Outcome Be? by Gary Shafferduring a mediation involving an intra-family commercial dispute. These included:

  • Resentments built up slowly over time;
  • Allies and enemies;
  • Divergent recollections; and
  • Emerging “alternate truths.”

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Intra-Family Commercial Mediation: Get Back At or Get Back Together?

{2.54 minutes to read} All happy families may be alike, but all families with intra-family disputes involving money Intra-Family Commercial Mediation: Get Back At or Get Back Together? by Gary Shafferare unhappy in their own way. Resentments build up slowly over time, people develop allies and enemies, recollections diverge, and “alternate truths” emerge. Each family has its own unique set of alternate truths that must, at a minimum, be recognized for a mediation to be successful.

The goal of an intra-family mediation is not to get family members to agree on a single truth. This may be emotionally impossible, and recollections can be fuzzy and subject to interpretation. Words can be stated in many different ways and with different intent. What was meant one way may have been taken in another. 5, 10, or 15 years later, the recordings are lost. And to some extent they may be irrelevant.

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Co-Mediation: Does it Make Sense?

{3:18 minutes to read} Mediations come in different flavors. Most typical is a single mediator who meets with the  Co-Mediation: Does it Make Sense? by Gary Shafferparties and includes joint as well as individual sessions.

Co-mediation is sometimes used in divorce or family matters, usually with a male and female mediator working with a male and female couple. The thought is that such an arrangement will lessen the possibility or the perception of gender bias. Experienced mediators are careful to avoid any bias as best they can or, are at least able to pick up when a particular spouse/partner is sensing some bias.

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Getting Divorced but Living Together?

{3:54 minutes to read} When most people get divorced the last thing they want to do is continue living together in  Getting Divorced but Living Together? by Gary Shafferthe same house. One of the prime reasons to get divorced is so you no longer have to live with that crackpot, jerk, cheat, ne’er-do-well, liar, energy-sucker.

When there are no kids, this is usually an easy decision. Hasta la vista, baby. But life isn’t always neat, and when there are children and limited resources, keeping the family home may be the best way to harness those resources and maintain stability.

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Bottom Lines: Don’t Reveal, But Do Discuss

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. Bottom Lines: Don’t Reveal, But Do Discuss by Gary ShafferYou can read that here.

My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

For all sorts of reasons, there are cases that can’t settle at mediation. However, the majority can and do eventually result in a settlement. Most of those could be resolved through mediation.

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Commercial Mediation: What’s Your Bottom Line?

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When, if ever, do you let a mediator know your bottom line?Commercial Mediation: What’s Your Bottom Line? by Gary Shaffer

There are three answers to this question:

  1. Never.
  2. When you say, “Okay, we can settle for that.”
  3. When it’s 6:30 p.m., and you (or your attorney or your client) have a 7:30 train to make. You know you’re pretty close to an agreement, and walking away now is painful given the time and money you’ve spent at the mediation. You don’t want to leave with the case unresolved, especially since you’ll have to wake up in the morning, and probably for quite a while, with the case still around.

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Mediation: Post-Nup as Marriage Counseling and Marriage Preservation

Mediation Post-Nup as Marriage Counseling and Marriage Preservation By Gary Shaffer{4:12 minutes to read} Sometimes couples who come to mediation are unsure if they really want to get divorced. They may not even know they are unsure.  

There are all sorts of reasons for people in a rocky relationship to stay together. The two that stand out are kids and financial resources. Even for well-off couples, the cost of post-divorce life is often surprising.

Bickering parents, of course, can be a source of great strain for children and sometimes breaking up can bring a measure of relief to everyone. But the strains in a relationship may not be ones that require breaking up and many couples might ideally like to stay together permanently, or at least until the kids are grown—meaning after high school or college—when financial pressures are reduced.

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About Us

An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

Contact Us

Phone :- 347.314.2163
Email :- gary@shaffermediation.com

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