OTHER PRACTICE AREAS
Almost any type of dispute can be resolved successfully in mediation with the right mediator. Law & Mediation mediators are an integral part of any settlement team. They can help to piece together a settlement puzzle. Law & Mediation has substantial experience and works closely with claimants, attorneys and or insurers to resolve claims prior to trial. Mediators have experience mediating in the fields of Partnership Agreements, Dissolutions and Disputes, Business Disputes, Personal Injury and Disaster Recovery Claims. Please contact us at (845) 639-1836 if you would like help in resolving these disputes or any other type of dispute that may not be included on this website.
Unfortunately, it is the case that some partnership agreements seem to be hastily written during the formation of businesses when newly forming companies are required to have formal documents to incorporate their business, obtain a tax identification number and the like. These agreements can fail to detail rights and responsibilities and oftentimes the partners themselves do not truly understand their obligations to one another and to the business itself, leaving them unprepared to settle conflicts or changes when they arise. It is rare that new businesses take the time to contemplate what may happen in the future, if the business does not work or the partners choose to go their separate ways. Our task here at Law & Mediation is twofold. We have the ability and experience to help newly forming business partnerships create their own tailored business partnership agreements which has the added benefit of outlining and exploring each of their duties and responsibilities with the other and their responsibility towards the business not just their financial shares and interests but also their procedures for buy-outs and sales, etc.
The other role that Law & Mediation finds itself engaging in is mediating issues that the partnership agreement that did not take into consideration such as the partners’ duties and responsibilities (the expectations the partners had of each other) or laying out paths to resolution when the partners are in dispute or roles are not clearly defined. Some of the many topics we help address are as follows:
- Establishing a name for the partnership
- Purpose of partnership
- Term of partnership
- Place of business
- Capital contributions to the partnership
- Withdrawal of Capital
- Allocation of profits, losses, and draws
- Partners’ authority
- Partnership decision making
- Management duties
- Admitting new partners
- Transferring partnership interest
- Withdrawal or death of a partner
- Dissolution of partnership
- Resolving disputes
Owners of small or medium size businesses, just as large corporations, can run into conflict with neighboring businesses, employees, customers, vendors, or with their own business partners. However, unlike large corporations, small and medium businesses often lack the public relations, human resources, and legal departments to help deal with such a wide range of conflicts and or disputes.
“Business disputes” can include contract disputes, disputes related to business mergers and acquisitions, intra-business or partnership disputes, sales disputes, construction disputes, disputes between franchisers and franchisees of businesses and between manufacturers and manufacturer’s representatives or disputes over the rendering of professional or other services.
Mediating business disputes is traditionally less expensive and less time-consuming than litigation. Mediation has the added benefits of leaving control of the process with the parties, allowing them discuss their own interpretations and giving them freedom to fashion their own solutions, rather than leaving the interpretation, control and decision-making authority with a judge and jury. Mediation also provides an opportunity for business owners to resolve a dispute in a non-adversarial way so that valuable business relationships may continue with a deeper understanding.
The mediators at Law & Mediation assist disputing parties to clearly identify each of the parties’ interests and goals, while identifying the necessary information sharing to help reach resolution. Mediators facilitate discussions and give feedback to the parties on the legal and factual issues from a neutral perspective. Our mediators understand that each mediation is unique as each dispute has its own history or business relationship. It is with these considerations that mediation can be a fluid process where decisions and ideas are formulated as the mediation unfolds to help the parties reach an understanding and a memorialized agreement.
When liability cases do not settle through negotiations, mediation represents a useful tool for further exploring settlement short of resorting to the risks, uncertainty and expenses (in time and money) of full-blown litigation. During the process, key parties (legal counsel, adjustors, injured parties, policy holders) meet in the mediators’ office (or the office of either counsel). Parties present their best cases, arguments, documents, experts, and evidence to reach a settlement. If the case settles, the parties draft a written agreement that they execute, which outlines the terms of the settlement. Depending upon the case a proposed consent order is signed and tendered to the court for its approval of the settlement. If the case does not settle through mediation, litigation resumes/commences.
Mediation can occur at any time after a claim is raised (even before formal suit is filed and served) and prior to the trial date. However, usually it happens after the plaintiff files suit and both sides have had an opportunity to investigate the case, conduct discovery and research legal issues. If mediation occurs too early in a case, the parties may not be ready to mediate. The process may suffer from more opinion and emotions and less evaluation and analysis grounded in the facts and realities of the strengths and weaknesses of the case. If mediation occurs too late in the case, for example on the eve of trial, so many expenses may have been incurred that the economics of settlement figures may not work. Parties and their counsel could be fully entrenched in their cases and not willing to budge.
Mediation is usually held at the mediator’s office or at the office of either counsel. The mediation is generally scheduled for a full day however some mediations can take as little as two hours and other mediations may require additional mediation meetings. The mediator serves as a neutral or facilitator who is unbiased and generally does not give a substantive opinion on the case. In terms of process, the mediator makes a general statement of his or her background and ground rules, and explains the process and how it will work. The Mediator invites the parties and/or their counsel to make opening statements. After opening statements are made and preliminary questions are discussed, the parties and counsel may separate into different rooms and negotiations take place typically utilizing the caucus method. Caucusing is when the mediator goes from room to room to discuss strengths and weaknesses of the case, nuances, questions, and concerns – bridging the gap. During this process, the mediator facilitates a process which encourages the parties to attach a dollar figure to their case for an offer or demand. The mediator relays those figures as well as questions, concerns and prospective back and forth to facilitate closing the gap in positions. What is discussed in a caucus meeting is confidential unless a party agrees that information can be shared. This allows for an open and candid exchange of information between a party and the mediator. If the mediation is successful, the parties will close the gap in positions and agree to a settlement that will be reduced to writing in a settlement agreement. Some cases may require the court to approve the settlement, for example cases involving a child under 18 years of age.