Wednesday, June 24, 2015

The Difference Between Mediation and Arbitration

The Morgue File

So you need to resolve a legal dispute and must make a choice between these two alternative dispute resolution mechanisms, While the basic differences between mediation and arbitration lie in methodology, these differences may also affect the ultimate outcome of your dispute. Therefore, it is helpful to know not only the basic differences but also the pros and cons of those differences.

In the most basic language, a mediation is a settlement while an arbitration is a decision on the merits of the case. While both are considered alternative dispute resolution mechanisms in that both avoid a full trial, including the costs of the trial, you must prepare for each differently.

In a mediation, both sides of a dispute meet with a mediator who attempts to broker a settlement of the matter. It is usually more informal than an arbitration and also less costly. Usually, mediation is a good tool to use in situations where the parties are not too far apart in their demand and offer to resolve.

In a mediation, the parties agree on the mediator based on the mediator’s experience with their type of matter and on the mediator’s reputation for bringing matters to resolution. A mediator is often, though not always, a person outside the court system. The mediator will inform the parties regarding what sort of briefing of the issues the mediator would like to see prior to the date of the mediation. Some mediators want a full briefing of a case’s strong and weak point in advance of the mediation. Some do not.

Often the mediator welcomes both sides, but soon separates the two sides and takes turns meeting with the parties individually, pointing out the strengths and weaknesses of each side to attempt to move both sides closer to a settlement figure. A good mediator can listen well to both sides and can also lean on both sides to procure a settlement.

If the two parties cannot be sufficiently swayed, a resolution may not occur at this stage of the litigation. This has no effect on any issue in the continuing litigation.

An arbitration is an evidentiary hearing in a less formal setting than a court room. Its outcome may be a final resolution of the matter or it may be “rejectable” by one or both parties depending on the agreement of the parties prior to arbitration.

Much like a judge, an arbitrator is a finder of fact. He or she will decide who “wins” and how much in damages that side will obtain. That then becomes the order of the court in the civil litigation and the matter is then resolved. An arbitrator needs to be able to listen well, but does not need any negotiating skills.

An arbitrator should know the area of law at issue quite well. Most arbitrations occur in an office, but with a full presentation of briefs, testimony and other evidence. The presentations are often informally done. An arbitrator will take in all of the evidence and issue a written decision within a specified time.

Because more evidence is produced at arbitration, it is usually more costly than mediation. An arbitration can take several days if a matter is complex. A mediation seldom takes more than one day.

In addition, a mediator often “splits the baby in two.” It is often said that no one is happy with a good settlement. And that is often true. The defense usually has to pay more than is desired and the plaintiff usually has to take less than is desired. That is the nature of settlement. Mediation is often best for cases where both sides have weaknesses in their cases.

In an arbitration, the fact finder makes an award based on the legal and factual issues. There is no splitting of the “baby” in this case. Arbitration is usually more successful later in the litigation as more information is obtained regarding the strengths and weakness of the case. It is often used with success when a case is strong with few weaknesses.

copyright/all rights reserved Audrey Howitt 2015

Tuesday, February 10, 2015

Why and How to Develop Rapport with your Estate Attorney

wikimedia commons
Illustration by C[yrus] Fosmire and/or Howard E Smith which appeared in McClures Magazine with The Griswold Divorce Case by Frederic Taber Cooper, representing a man dictating to another an incriminating note, circa 1910. In the public domain in the United States

We will all die. It is merely a question of when. If we are lucky and smart, we will have some assets to pass onto loved ones after we die. But families, all families, have their quirks and difficulties. Poor family dynamics inevitably emerge upon the death of a loved one where beneficiaries are concerned. And these family dynamics can lead to protracted litigation. However, some of these dynamics can be eliminated or alleviated if we use the proper estate planning tools.

Estate planning attorneys are very knowledgeable regarding the process of probate and how to avoid probate. This question of whether to probate an estate or whether that estate should pass via trust remains a fundamental one. The poorer the family dynamics, the more important it becomes that a court oversee the disposition of an estate. That may mean using a will and not a trust as the primary dispository document. This may be mitigated by the tax consequences and size of the estate at issue.

If an attorney is made aware of family dynamics, they attorney can make recommendations regarding tools to avoid protracted litigation post-death. Such recommendations can include a third party to handle distribution to avoid infighting; or the use of “no-contest clauses” to deter a court battle.

Many estate planning attorneys will have clients fill out forms that address the question of assets and their value, children, marriages, divorces and the like. In some ways, these forms expedite the planning process. From these tools, the attorney is likely able to gather crucial information about the size of the estate and likely tax consequences upon death.

These forms are less likely to address critical information such family dynamics or other special needs such as whether a potential beneficiary is in need of special help such as a special needs trust or a guardianship. This does not mean that they are not attuned to the special needs that clients have.

An attorney will usually ask questions of a more sensitive nature during a consult with the client. It is in the client’s best interests to be forthright and honest regarding all matters that the client believes are important and will affect the disposition of property upon the client’s death. If the attorney doesn’t ask, the client must be willing to state their concerns openly with the attorney.

In the reality of an attorney’s practice, he or she will only have a specified amount of time to spend with any client before the next appointment. It may take more than one appointment for all matters to be resolved to the client’s satisfaction. Do not be afraid to ask for more time and do not be afraid to ask questions of an attorney.

Most problems in estate planning occur not from poor drafting of documents, but from crucial information being withheld, often in ignorance. If you as a client feel the matter is important, then it usually is. Do not be afraid to raise that issue with an attorney. An attorney would much rather spend time with a client now than spend time litigating the matter later. Remember that you are hiring a person with expertise to help you. Make sure that you address your concerns fully and make sure that you understand fully the product that you are buying. In essence, talk to your attorney.

copyright/all rights reserved Audrey Howitt 2015

Police to be Held Accountable? Perhaps!

wikimedia commons
In the public domain in the United States
Waage als Sinnbild für das Bemühen um Gleichgewicht zwischen dem Universum und der Welt der Menschen (Makro-und Mikrokosmos)

The debate over police tactics continues to rage across the country in the wake of shootings, demonstrations, grand jury deliberations and mounting outrage from protesters and police alike. It is also being played out in Albuquerque, New Mexico--not a place often found in the same sentence as Ferguson.  

In this unlikely town, the district attorney has filed murder charges against two officers involved in the shooting death of a homeless man last year.  The Albuquerque Police Department has been the focus of repeated protests over police-involved shootings. Albuquerque police shot and killed 27 people between 2010 and 2014, according to records kept by the Albuquerque Journal. 

Charges follow the shooting death of James Boyd last March.  According to police, Boyd was shot holding two knives. However, film footage from one of the officer's mandated body cameras appears to show Boyd turning away from officers just before the officers opened fire. 

Unlike the typical grand jury proceedings which are veiled in secrecy and filled with questions, these criminal charges were filed and subject to a preliminary hearing, which is part of the public record. 

While there is debate on both sides of the issue regarding the use of force and what is necessary and appropriate, the public at large is calling for answers.  This case is to follow. It may signal a change in the handling of police shooting across the country.