Tag: Shaffer Mediation

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 many 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:

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 Shaffer during 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.”

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 are 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.

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 parties 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.

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 the 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.

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. You 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.

Commercial Mediation: What’s Your Bottom Line?

{3:06 minutes to read}

When, if ever, do you let a mediator know your bottom line?

There are three answers to this question:

Never.
When you say, “Okay, we can settle for that.”
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.

Easier Said Than Done

{2:54 minutes to read} I recently came across an Employee Handbook for a large metropolitan hospital. The handbook is relatively short, only 24 pages. It gives all sorts of information about benefits, professional development, direct deposit of paychecks, equal opportunity, employee health services, etc. There is also a brief, two-paragraph section on Grievance Procedures, where it says:

The hospital strives to be consistent and fair in its labor relations and pursues the development of sound working relationships among supervisors and employees. Usually, issues resulting in a grievance are the result of a misunderstanding and can be resolved through improved communication between management and employees.

Appellate Mediations – Part 2

{3:30 minutes to read}

In my last blog, I discussed why mediating a case on appeal often makes sense, even to the party that has won Round 1. This time I want to focus on the potential risks and benefits that winners and losers face in the appeal process and how that affects their willingness to mediate.

Losers

If you lose on appeal, you really lose, and perhaps with greater consequences. No one wants to lose at the trial court level, but having an appellate court give it a stamp of approval can be even worse. The loser may then be living with the consequences for years to come. However, mediating the case before there is a decision on the appeal, can result in reducing damages for a defendant, obtaining some damages for a plaintiff, or designing a resolution where the outcome is more secure, slightly less onerous, and works in the long run.

Mediate an Appeal? Wait, Didn't Someone Already Win?

{3:12 minutes to read} One might think that mediating cases on appeal would be a losing proposition. After all, someone has already won. What’s the motivation for the winner to mediate? Oftentimes, plenty.

Cases on appeal arise in many different contexts: after a full trial, after a successful summary judgment motion or motion to dismiss, even, occasionally, on a discovery matter. The winning party typically has the upper hand. But this is usually only one aspect of the mediation. It turns out that parties who have won the first round are often still interested in resolving a matter, and mediation may be the easiest and most efficient way to do it.

Appeals, like many other aspects of our legal system, can be costly and time consuming. And the outcome isn’t guaranteed. Lower courts get reversed or judgments are modified. This can mean even more litigation. Both the winning and losing parties need to consider these factors. Even on appeal, parties often want to wrap things up, and mediating at this stage can provide an unusual opportunity to do that. The legal issues may be clearly framed, the litigants know their case very well, and the facts will often have been developed through discovery, motion submissions, or a trial.

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