Mediating Business Disputes Effectively

By Guest Blogger Tim Langella

Business disputes come in all shapes and sizes, and often have both monetary and non-monetary elements. Here’s an interesting mediation case study:

A successful, public company is looking for a consultant to assist with a 5 year project that will be undertaken through several, ongoing work orders. The founder of a local consulting company pitches the work along with one of the consultant’s three key employees, and lands the job. The parties enter into a detailed, written agreement that specifies, among other things, how the scope of the work for a particular aspect of the project will be defined, payment terms, and what happens if the consultant breaches the contract.

The relationship is rewarding for both parties for the first two years — three separate projects are defined and completed, the consultant has hired numerous extra people to work on the various projects, and the public company is happy with both the personnel assigned to the projects, as well as the results.

During the third year, however, just a few months into the next 18-month project, the key person assigned to the account leaves the employment of the consultant. The public company, concerned about the loss of that key consultant, reluctantly decides that it no longer wishes to pursue the project without that key person assisting, and unilaterally terminates the relationship – with less than complete attention paid to the terms of the contract and the legal implications of doing so.

Instead, the public company offers to pay the consultant for all work performed up to the date of termination, plus two weeks salary for the consultant’s employees assigned to the existing project. The consultant is concerned about the loss of work/revenue, angry (and bit embarrassed) about how the termination was effected, and worried about having to lay-off several employees who have become part of the business family. The consultant counter-demands damages equal to the revenue it would have earned for the remaining 15 months of the project, thinking that will provide enough time to keep the employees on the payroll and find substitute work for them.

The parties stop talking, lawsuits are threatened and then filed, and both sides are faced with the prospect of years of expensive and consuming litigation.

Litigation may be able to resolve the financial aspects of this dispute – after months, if not years, of paying lawyers and experts to sort through the relevant information. But it will never resolve the personnel issues the consultant faces as the owner of a small business, or the reputational concerns the consultant has from being suddenly terminated from what it thought was a successful relationship. Nor will it allow the public company to address in a private and confidential setting a messy contractual dispute which resulted from its failure to follow agreed upon contractual terms.

Mediation is the best option to contend not only with the monetary dispute, but also with the other factors that have arisen. Mediating such a matter not only keeps decision-making in the hands of the parties, but also offers the best chance at salvaging at least some of the work on the disputed project, preserving the parties’ relationship for future work together, and negotiating important issues such as recommendations that the consultant can reasonably expect from the company for the work it successfully completed over the years.

An experienced mediator, skilled in business disputes, can help the parties air and resolve all aspects of their grievances in a controlled and confidential setting. Quickly, efficiently, and less costly than protracted litigation, mediation offers unparalleled creative problem-solving opportunities.

Why Collaborative Divorce is Different & Better

By:  Anthony C. Adamopoulos
MDRS Neutral and Guest Blogger

THE DIFFERENCE:

The Collaborative Divorce Process is so much better because it is the only process where the attorneys are committed, by written agreement, to concentrate on settlement, AND, if they cannot get a settlement, they cannot represent you in litigation.

The difference is truly transformative in divorce law. In litigation, divorce attorneys cannot say that their first and only priority is to get a settlement. Collaborative Attorneys can and do.

THE PROCESS:

First, you must be committed to a quick and less expensive resolution of your divorce; rather than winning in court litigation.

Once you are committed to a quick and less expensive resolution, you each select your own Collaborative Attorney who is specially trained to practice Collaborative Divorce. Not all attorneys are certified to be Collaborative Attorneys.

You, your spouse, and the two attorneys then sign a contract committing all efforts to resolution.

The next real difference from litigation is that you and your spouse, with the guidance of your Collaborative Attorneys, will then use two key experts – a Financial Neutral and a Facilitator Neutral. Your Facilitator expedites the process by helping you and your spouse identify short and long term goals and overcome inter-personal roadblocks. Your Financial Neutral expedites the process by analyzing the unique needs of your family, identifying tax provisions related to those needs and creating realistic plans to preserve family income and property. And, the neutrals will bill at fees below the attorneys’ fees. This means that unlike other divorce situations, if, for example, you and your spouse disagree over a parenting plan, the Facilitator Neutral will help resolve the parenting problem at a lower rate than the attorneys’ fees. Or, if there is a disagreement over whether to sell the house, the Financial Neutral will work on a resolution rather than the two higher paid attorneys.

In resolving issues that are delaying settlement, neither the attorneys nor the neutrals will be concerned about “winning”; they will concentrate on meeting the real needs of you and your spouse rather than any psychological “want to win”.

What is the Difference Between Divorce Mediation and Collaborative Divorce?

MEDIATION is an independent, voluntary, confidential process conducted by a mediator, who is neutral. Attorneys are not required. The mediator will:

  • Assist you and your spouse in identifying those issues preventing settlement.
  • Explore various avenues to resolution.
  • Develop a settlement resolution acceptable to you and your spouse.
  • Will prepare a Separation Agreement for presentation to the Court. (Only mediators who are attorneys may draft Separation Agreements.)
    The two of you will select the mediator. The mediator’s fees will usually be split between the two of you, however, the two of you may agree to a different responsibility for the fee.

The major benefits of Mediation are:

  • The mediation is private.
  • The mediator will provide all the time you and your spouse need to work on a resolution.
  • Experienced mediators have settlement rates of between 85% and 97%.
  • An attorney need not be present at mediation sessions.

In COLLABORATIVE DIVORCE, you, your spouse, your Collaborative lawyers and Coaches make up the Collaborative Team. The Team has one goal, the quick and efficient resolution of all issues without trial litigation.Coaches make your divorce process efficient and usually less expensive. The most common Coaches are the Facilitator and the Financial Neutral. The Facilitator expedites the process by helping you and your spouse identify term goals and overcome inter-personal roadblocks. The Financial Neutral expedites the process by analyzing the financial needs of your family, identifying tax provisions related to those needs and creating realistic plans to preserve family income and property. Coach hourly fees are often much lower than attorney hourly fees.

In Collaborative Divorce, attorneys are specially trained and certified.

Your Professional Collaborative Team will:

  • Identify issues regarding the children, support and property division that are preventing resolution.
  • Divide primary responsibility for resolving those issues. For example, issues dealing with the children will be addressed primarily by the Facilitator Coach; issues about the amount of support needed will be addressed by the Financial Coach.
  • Have the required Separation Agreement, Petition for Divorce and Affidavit prepared, executed and filed.
  • Have your attorneys accompany you to the Probate and Family Court for your divorce hearing before a Judge.


The major benefits of Collaborative Divorce are:

  • From beginning to end, you are with and “supported” by a team dedicated to getting you and your spouse divorced quickly and efficiently.
  • All issues are dealt with and resolved in confidential sessions.
  • Your attorneys handle all the administrative court matters to get your divorce papers filed, docketed and scheduled for a hearing.
  • At your divorce hearing your attorneys will respond to questions of the judge, thereby avoiding rescheduling of the hearing because you did not have an attorney to correctly answer questions.


by Anthony C. Adamopoulos

How Long Does It Take to Get a Divorce Through Mediation?

The time it takes to get “through” the Mediation Process initially depends on whether or not each party returns a properly completed Probate and Family Court Financial Statement. The Mediator needs a correct Financial Statement for many reasons. An insufficient Statement causes delay and increased cost. At the outset, the Mediator will provide clients with the form and instructions.

To complete the Divorce Mediation the mediator will guide the parties through any issues surrounding the three major components of a Separation Agreement – the children, support and division of property.

The length of time it takes to resolve each component is directly related to the amount of disagreement on each component.

For example, if the parties have already agreed on how many over-nights the children will spend at each parent’s home, they have essentially resolved about 1/3 of the Divorce Mediation. The same applies to support. If the parties agree with the accuracy of each other’s Financial Statement and their respective post-divorce financial needs, they will also have resolved 1/3 of the Divorce Mediation. Lastly, if the parties agree on the accuracy of each other’s Financial Statement and have already decided how the property listed on each Financial Statement will be divided between them, then they will have resolved 1/3 of the Mediation.

Assuming a fact pattern similar to the above, then the mediation can be completed in less than three hours. There remains only the preparation of the formal Divorce Separation Agreement by the mediator. (Only divorce mediators who are attorneys can prepare Divorce Separation Agreements.) Under the above scenario, it would take about one and half hours or less to prepare the Agreement.

So how long does a divorce mediation take? About four to five hours if the Financial Statements are accurate and the parties are in agreement as to the major issues.

by Anthony C. Adamopoulos

Read the Original Blog Here: https://www.divorcingoptions.com/Blog/?p=346

Stuck in Divorce Court? Here is Your Last Chance to Cut Costs and Aggravation

By Anthony C. Adamopoulos

Are you in divorce litigation?

Are you having second thoughts – time standards, discovery cost, no trial in sight? Enough!

You have complained to your attorney and your attorney reports that your spouse’s attorney has heard the same complaints from your spouse. Your attorney suggests mediation or conciliation.

What is the difference between Divorce Mediation and Divorce Conciliation?

Mediation is an independent, voluntary, confidential process conducted by a mediator, who is neutral. The mediator will:

-Assist you and your spouse in identifying and discussing those issues keeping the two of you from settlement.

-Explore with you and your spouse various avenues to resolution.

-Develop a settlement acceptable to you and your spouse.

-The two of you will select the mediator. The mediator’s fees will be split between the two of you or paid as the two of you agree.

The major benefits to Mediation are:

-The mediation is private. There is no report to the Judge.

-The mediator will provide all the time you and your spouse need to work on a resolution.
Experienced mediators have settlement rates of between 85% and 97%.

-If the mediation is in the 3-15% that fail, you and your spouse may enter a written agreement (stipulation) stating that all that was agreed to in the mediation shall not be litigated at trial.

The major negatives to Mediation are:

-The Mediator is paid.
-If the mediation is in the 3-15% that fail, the parties will have to return to the litigation process for the unresolved issues.
-Since you are in litigation, you must get permission from the judge to “take a time out” for mediation. Your attorney will handle this.

Conciliation is a court related process in which a court appointed neutral (the Conciliator) assists parties to resolve their case by:

1. Clarifying the issues preventing a settlement; and then
2. Assessing the strengths and weaknesses of each side’s arguments; and
3. If the divorce cannot be resolved, then the Conciliator explores the steps which remain to prepare the case for trial.

The Court usually allocates two hours for the Conciliation session. The Conciliator is not paid, but there is an administration fee, currently $50.00 per party.

The major benefits to Conciliation are:

-The trained Conciliator will assess your “side” and your spouse’s “side”. You will then be able to consider the assessment in planning your next step, e.g., trial or settlement.
-The Conciliator does not get paid.

The major negatives to Conciliation are:

-The Conciliation lasts a short time, contrasted to Divorce Mediation.
-The Conciliator may report her/his assessment to the Judge and any opinion as to whether someone is not acting in good faith.

What should you do?

Statistically, 97% of divorce litigation will settle within days of the trial. That means, even though you and your spouse each paid an enormous amount of money to get ready for trial, it may never happen (97% of the time).

The sensible thing is to avoid more costs now, stop the litigation, and settle your differences in mediation or arbitration.

Read the original blog here

Divorce Arbitration is the Way to Go! So……

by Anthony C. Adamopoulos

A decision of our Appeals Court, Gravlin v. Gravlin, is helpful for those facing divorce.

For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial.

In Gravlin, the Appeals Court acknowledged “… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.” This Blog has often praised the value of arbitration as an alternative to divorce litigation; with Gravlin, the Appeals Court stamped an imprimatur of sorts on divorce arbitration.

While arbitration is available to replace a public court trial, it is also available if collaboration or mediation reaches a deadlock (a stalemate on one or two remaining issues); then, it is time for divorce arbitration.

When parties follow a simple process, the Appeals Court promises a “… strict standard of review [that] is high[ly] deferential…” to an arbitration award.

What does the simple process involve? The simple process requires that:

Respective counsel advise each party.
Parties freely enter an Agreement to Arbitrate.
Parties knowingly waive a court trial and submit to arbitration.
If there is any trial court review of an arbitration award, the review will be limited to determining:

The arbitrator’s award was confined to what he/she was asked to decide;
The award did not give relief that is prohibited by law;
The award is not based on fraud, arbitrary conduct, or procedural irregularity in the hearing.
(In my experience, the selection of an experienced, knowledgeable arbitrator will result in a positive review and enforcement of the award.)

For collaborative attorneys and mediators, Gravlin is another reason to recommend arbitration for settlement stalemate.

For parties facing divorce or divorce stalemate, arbitration is an alternative to a costly, lengthy and publicly litigated trial.

Anthony is a divorce arbitrator, collaborative attorney and divorce mediator. His office is in Salem.

Child Support Guidelines Changes & Parenting Time

By  Anthony C. Adamopoulos, Member of the MDRS Panel of Neutrals/Guest Blogger

The current “old” Child Support Guidelines provided a separate child support calculation where, for example, the father shared “financial responsibility and parenting time” of greater than one-third but less than fifty percent of the time.

This usually meant that if, for example, the father was with his children more than one- third of their time he was going to pay less child support than the father who is with his children about a third of the time. This adjustment is dropped under the new Guidelines announced on July 18th and formally effective on September 15, 2017.

While the formal effective date is not until September, experienced divorce attorneys, mediators and arbitrators have started using the new Guidelines.

Article originally published here: http://www.divorcingoptions.com/Blog/?p=260

Saving $$$$ Divorcing — Financial Statements

By Guest Blogger, Anthony C. Adamopoulos

In my over 25 years of helping people facing divorce, I have seen, in almost every divorce, a reoccurring client decision that results in wasting hundreds, and sometimes, thousands of dollars.

What is that decision? The decision not to read and follow the court’s instructions on how to complete the court’s Financial Statement.

In all divorce cases, the most important document is the Probate and Family Court Financial Statement.

In an “uncontested” divorce, the judge reads the Financial Statement to help her or him decide if she or he will approve the parties’ Separation Agreement. I have seen judges, or their clerks, refuse to let uncontested divorce cases be approved because Financial Statements did not conform to the court’s instructions.

In contested cases, the Financial Statement helps the judge determine many issues, for example, the standard of living of a party, the needs of a party, and the honesty of a party.

In my office, and the offices of many attorneys I know, we do not complete client Financial Statements. No client of mine can ever say, “I do not know where that number came from, my attorney completed the Financial Statement.” Clients must complete their own Financial Statements.

The Probate and Family Court Instructions for Financial Statements can be found by going to my web site DivorcingOptions.com, then to RESOURCES, then to Long Form Instructions or Short Form Instructions.

There are about 13 to 15 paragraphs of instruction.

The instructions for both forms are accompanied by a self-calculating form for the user’s convenience.

Here is a list of the most ignored instructions:

  1. Fill in your name and address;
  2. Answer every question;
  3. If an answer to a question is 0 or none, enter 0 or none;
  4. All income and expenses are to be reported in weekly amounts with monthly figures being divided by 4.3;
  5. List all assets and present value.

5.Since the Family Court wants its instructions followed, my paralegal or I must point out what needs to be changed, in a client’s draft Statement, to comply with the court’s instructions.

Because clients are paying for time, the amount of errors and the amount of resistance (Yes, some clients resist the court’s instructions under the misbelief that the court will make an exception in their case.) can result in legal fees that are avoidable.

The take away:

The court’s instructions are few and clear. Taking the time to follow them can save you $$$$.

Please click the link to navigate to Anthony C. Adamopoulos’s website.

New Year’s (Dispute) Resolution

Not everyone likes to make resolutions for the new year. It can even be a matter of contention in some households: why should I bother; how can a symbolic date generate legitimate self-improvement? But while gym membership renewals and swearing off holiday cakes are commonly regarded as the right start to the new year, could there be more to this new beginning?

We all have the capacity to hold onto anger, but with the help of such firms as Massachusetts Dispute Resolution Services, you can effectively let go of it. Alternative dispute resolution is a convenient and successful way to resolve your personal legal disputes. Divorce, employment and business matters, even negligence, are often surrounded by personal resentment and can be swept under the proverbial rug of life. Some cases, like personal injury and accidents should be dealt with immediately; however, family and business issues are often left to fester.

In order to truly start the year fresh, resolve to speak with a mediator. ADR can be, quite literally, one of your 2012 resolutions.

To Stay or Not to Stay (at the Divorce Hotel)

For approximately $3,500, couples can stay at a luxury hotel in The Netherlands and enjoy room service, beautiful scenery, and…a divorce. The idea for a “divorce hotel” was developed by Dutch entrepreneur Jim Halfens as a celebrity divorce destination.

A team of lawyers, divorce mediators, and counselors, as well as the regular hotel staff, help couples who have markedly simple marital arrangements facilitate quick and comfortable divorces. This kind of divorce is for cooperative couples with their own assets who don’t have young children together.

While it seems a long way off, a 2 1/2 day vacation is actually what divorce mediation might seem like to couples who thought litigation was their only option. If only we offered complementary dessert.

Read the full article here.