The Need of Professional Criminal Defense Attorney to Protect Your Right

The law is a complex and varied topic and there are many different area of the law. Some of which are related and others of which bear little relation to each other. Finding the right lawyer for your particular needs is highly important if you hope to be able to win a case in court and avoid a heavy fine or other penalties or conversely if you are trying to get compensation yourself.

Criminal defense attorney is one of the most popular types of attorneys. This type of attorney actually has a rather difficult job as he or she represents those individuals who have been accused of a crime, as they make sure that there would be a just trial given to the defendant or to their client.

A professional criminal attorney will help you to lessen your criminal charge; lessen the severity of punishment and might even eliminate jail time through probation and help you to develop a sound defense strategy. So it’s important that the attorney you hire has the necessary skills to defend your case. Choose someone having excellent eloquence, which will help him in better arguing for your case. Check for his track record in the type of crime you have been charged. Ask him to share his successful negotiation in earlier cases. Concentrate on the attorney ability, skill level and experience with state and local rules of court.

There are several ways to search for the attorney who will meet your needs. Start from the internet search engine. Search under the name of each lawyer and also the law firm he or she belongs. Check the biographical information and whatever you can find on their website including their past excellence in the defense area you require. Ask your friend or family member who had to find an attorney. He may be able to help you. Also you can ask for referral from the law firm that you work with or your company work with to help you find the best attorney suited for your case.

The cost of an attorney is based on the severity of the case. Most of the criminal lawyers charge hourly or by flat fee arrangement. Flat fee can create a big hole in the pocket if the case is too complicated or goes past the refundable amount. If you cannot afford one defense attorney you will get one public defender to represent your case.

Traffic lawyers will help you in cases where you are in dispute over an accident or a ticket. If for instance you find yourself on the receiving end of a traffic ticket or speeding ticket that you don’t believe was your fault, then you might opt to use traffic lawyers in order to argue your case and avoid getting the points on your license and the nasty fine. Meanwhile you might choose to use traffic lawyers in the instance that you have had a car crash and don’t believe it’s your fault.

Traffic lawyers also will help in either of these situations in a variety of ways. In the case of a traffic accident, you might use a traffic lawyer to either defend yourself or to prosecute someone else in a civil litigation case. Here the roles of a traffic lawyer and criminal lawyers might overlap in cases where you are being prosecuted for criminal driving such as a hit and run.

It is important that a criminal traffic attorney is contacted before appearing at court with regard to the traffic violation or speeding violations. It is only the traffic violation attorney who will be able to properly assess the current situation you may be in and advise with aim to bring about professional resolution to the traffic violation.

If you are facing serious criminal traffic, AC Law Group is the law firm to call in Glendale AZ. They offer criminal traffic attorney Glendale AZ. They are experienced criminal defense attorneys and will help protect your rights and represent you in court. Professional criminal defense attorneys will explain clearly for the possible legal options you have and can seek.

All in all, all traffic violations case the services and help of a criminal defense attorney becomes quite a necessity. Someone was arrested for traffic violations or was arrested for criminal speeding, they should consult with an attorney before pleading guilty or paying the fines. They may also need to check out from the attorney directory the concerned lawyers specializing in traffic violations.

Represent Your Divorce Case with Professional Divorce Attorney

Divorce is a legal process of ending your marriage, so that’s why you may need a professional divorce attorney Hilliard. If your partner or your family has been unfaithful or they did something to end the marriage, every small bit of information you feel will be represented by your divorce attorney.

Divorce is one of the most emotionally traumatic experiences anyone could go through in addition to leaving them in some very serious financial stresses. Sometimes, despite all the effort to save it, you soon realize that your marriage is on the verge of collapse. In this situation, you should start preparing yourself to contact a divorce attorney. The divorce attorney is the person who takes up divorce cases and pursues them in a legal framework.

Divorce can change your life. It is very imperative that you prepare yourselves for all the possible condition. It is very responsibility of the divorce attorney to serve you with the necessary legal assistance and information to have your divorce proceedings as smooth and hassle-free as it can be.

The best strategy you can do to protect yourself from personal and property loss is find a professional divorce attorney who can help to protect your cases. An experienced divorce attorney has seen many different situations. They will guide you through the process to ensure you get the best possible results.

Remember, a professional divorce attorney will prove beneficial to those pulled into a divorce cases. They will have the right training and experience necessary to know and fully understand all of the laws, rules, and regulations surrounding divorce proceedings and how they should be properly handled.

All in all, make the things easier by choosing a professional divorce attorney to represent you. Even if your process did not come smoothly, at least you know you’re doing the right things, legal way, and that the agreement you and your former spouse come to will be binding in a court of law.

Family Mediation – Questions and Answers

What is Family Mediation?

Family mediation is an Alternative Dispute Resolution technique that is used to resolve issues that are experienced between family members. The mediation process allows both parties to have confidential dialogue and to reach an agreement between the disputants with the assistance of a mediator, or neutral person. The mediator, being impartial, cannot advise you on what you should or should not accept with regards to possible solutions, but will work as a catalyst clarifying legal issues keeping the lines of communication open.

What Type of Issues may be Covered by Mediation?

Family mediation can involve disputes post separation or divorce such as child custody or ownership disputes as well as such issues as elder mediation which relates to dealing with elderly family members. Other family disputes that can benefit from mediation include land disputes and finances. Additional issues include pet allocation, addressing the welfare of ill family members as well as visitation rights if one parent finds themselves in unacceptable living arrangements post divorce.

How Long Do Mediation Usually Take?

As a general rule of thumb, mediations will take no longer than three hours, however, this is up to the discretion of the mediator and how they feel the proceedings are moving along. If it appears that a resolution is just around the corner, they will continue until it is achieved. If however, there seems to be many more issues to deal with, then additional sessions may be scheduled. Many mediations reach a conclusion between three and six hours. At this point if there is no agreement, the mediator may conclude that other techniques may need to be implemented or that the case requires more formal attention.

How Confidential is the Process?

While most of what is said during the mediation process is held in the strictest of confidence, it is important to note that financial information can be made public if the case were to go before a court. Information divulged during the mediation process cannot be used in court unless both the parties involved have agreed to it. During the mediation process itself, caucus or private sessions between one party and the mediator, may be called by either party. The information divulged during this caucus is entirely confidential and may not be used in the mediation unless permission is granted.

If an Agreement is Reached, How is it Enforced?

In the event that an agreement is reached by both the parties which is mutually satisfactory, a summary will be written up which must then be presented to a solicitor. The solicitor will then compile an agreement based on the summary which is legally binding and will request that both parties sign the agreement. The initial summary written up by the mediator is not a legally binding contract, but a contract of good faith. It is only made legal once a legal representative turns it into a binding contract.

Are Mediators Legal Representatives?

Although it is becoming commonplace for mediators to have a legal background and for many of them to have a very good understanding of the legal process, some people feel that the nature of mediation is very different to the confrontational nature of court proceedings and prefer to work with mediators who are not qualified lawyers, but rather paralegals who have trained in mediation and have an excellent understanding of the legal system.

Where Can Find Quality Advice on Family Mediation?

Finding specific information on alternative dispute resolution (ADR) services and mediation services will help you to see if these types of services can be of benefit to you and our video library will give you insights into civil, elder, community, divorce, child custody mediations and more. Finding the right service that can specifically deal with your particular conflict issues including workplace, marriage, family and peer conflict will dramatically enhance the success rate of the mediation outcome. To find the right family mediation service visit our Family Mediation Guide [http://www.mediationprocess.org/family-mediation].

Jean is a senior mediation researcher for [http://www.mediationprocess.org]. She and her team have collated information to compile an easy to understand guide to the various types of mediation and how each process can facilitiate finding solutions to conflicts experienced by all walks of life.

Making Mediation Work in Child Custody Disputes

Mediation is a growing trend for settling disputes in the work place, but divorce and child custody issues have become so tense, that many parents believe that it can not work for them. With parents that can’t even agree whether the sky is blue or not, how can they possibly agree to any terms during mediation?

Mediation can really take the headache out of a divorce, a battle for custody or disputes on visitation. Mediators are professionals at getting to the heart of an issue, listening to what each person is trying to accomplish and implementing a plan to help accomplish those goals. If you can successfully mediate your issue, then going to court becomes simple. Further, when putting the terms of your mediation into a court motion, these terms become legally binding.

Issues that typically stop people from seeking mediation include:

We can’t discuss anything without arguing
I don’t want to be in the same room as him/her
I am simply not willing to compromise

While these issues can certainly impede mediation, they do not have to mean that mediation can not work. Even if you and the other person can not be together without arguing, that is what the mediator is there for. The mediator is impartial and will recognize issues that do not pertain to the relief you are seeking. For example, if you are seeking full legal custody of your child, but the other party wants to continually argue about who you are dating, the mediator may point out that it is irrelevant to custody proceedings. However, you must keep in mind that full legal custody is difficult to get, even if you end up going to court.

When people refuse mediation because they don’t want to sit in an office, and hash out the details with their ex, they must understand that most mediators will agree to go back and forth. Mediation does not have to occur in the confines of one room. It can be done through multiple avenues, such as telephone conversations, emails, and letters.

Most mediation fails or is never attempted because one or both parties are simply unwilling to compromise on the issues. This is particularly true in child custody. Understanding the family court system’s tendencies may change one’s mind on their refusal to compromise. Years ago, the courts tended to award full legal custody to one parent. This allowed that parent to make all decisions about the child’s education, religious upbringing and medical care. Currently, the courts have realized that children are generally better off when both parents have a say so in these and other areas that effect a child’s life. Therefore, both parents are usually granted legal custody.

Additionally, the courts also tend to award joint custody more often now, so that the child is spending an “equal” amount of time with both parents. If you are unwilling to compromise on these issues of child custody, you should be aware that there typically needs to be a reason that you would not want the other parent to have legal and joint custody, such as proven drug use, abuse or some other issue that would cause that parent to not be able to properly care for the child. So while you may not want to come to a compromise with your ex and do not want to attempt mediation, your court system may force you to compromise. Remember that compromising during mediation, can save you the time, money and frustration of fighting a long court battle for custody that you may not get anyway.

There are other benefits to mediation too. Mediation saves time, money and frustration for your child. Mediation can be completed in as little as a few days, compared to months and sometimes years in court for a custody battle. Saving this time, leads to saving you money. Imagine paying an attorney $250 per hour or more for the next couple months of your life while your custody battle plays out in the family courts. If saving time and money doesn’t convince you to try mediation, maybe the well-being of your child can.

Mediation essentially requires that you and your ex agree on the custody of your child, even if the agreement wasn’t your first choice. Research shows that children of divorced or separated parents do better psychologically when their parents can agree and get along. Children can suffer depression, confusion and anxiety if forced to testify in court about child custody. Thus, before you decide to go to court over your custody dispute, think about the benefits of mediation first.

In addition to the benefits of saving time, money and frustration for your child, any agreement reached during mediation can generally be a part of your divorce or a modification order. Once mediation is completed, the mediator will generally file a motion with the courts that only requires the judge’s signature to make it an order or an amendment to an order. All of this makes mediation almost as easy as 1, 2, 3.

Find a mediator that specializes in family law
State what you are looking to accomplish, and be willing to compromise
Find an final solution and file it with the court

Family and Divorce Mediation – A Non-Adversarial Approach to Family Transition

Mediation is a process in which divorcing or separating couples meet with an impartial, neutral person who facilitates communications and problem-solving until an agreement is reached. It is a voluntary process that allows parties to craft their own settlement, rather than to advocate against each other and have decisions imposed upon them by a judge or magistrate who probably does not have the time to learn the fine details of the issues at hand. Mediation is less formal than litigation, is more confidential than court proceedings, and is generally more satisfying to the parties because they have created their own solutions.

Often, parties have been arguing for so long that it has become difficult, if not impossible, for them to see a solution. They have become so attached to the black and white perspective of win/lose that they overlook all the shades of gray in between.

Mediation is designed to examine those shades of gray for possible solutions. During mediation, the parties, not the mediator, are the decision-makers. What the mediator does is to help the parties to set an agenda for the mediation, and to identify and explore the many issues which can cause divorce, separation, and child-related cases to be so difficult and emotional.

How Does Mediation Work?

Generally, the mediator will begin by meeting with both parties together to explain the mediation process, establish the ground rules for the session and hear initial statements from each party. This will help to identify the problems and the issues, clarify the needs of the parties, and keep the parties focused on their general interests and needs rather than on any specific agendas they feel attached to.

There might be times during the mediation when the mediator will meet with each party separately. Called a “caucus,” this type of meeting can be used to allow parties to express themselves more openly, explore options they don’t feel comfortable exploring in a joint session, address non-productive behavior, clarify details, or give the parties time to think away from the other party.

Can We Mediate If We Don’t Get Along?

Parties do not have to get along or even be particularly friendly to successfully mediate their issues. The mediator can help diffuse the emotions and anger that are so often associated with relationship, financial, and child-related issues. And because mediation is a voluntary process, it can be discontinued at any time the participants or the mediator feel that the process is unproductive.

Will The Mediator Advise Me About My Legal Rights?

It is important to understand that mediation is not the practice of law. Mediators come from many different backgrounds. Some mediators are attorneys who have special training in mediation. While an attorney mediator might provide general legal information, s/he is acting as a neutral in the mediation process and not as an attorney or legal advisor. The attorney mediator does not:

o represent the mediation participants in their legal action,

o offer legal advice or provide legal counsel to the parties regarding their legal rights and obligations, or

o predict how the court might rule on a specific issue.

Mediation does not eliminate the need for lawyers; it simply changes their role from being an adversary against the other party to being an advisor for each party. Parties are encouraged to at least have the final agreement reviewed by a lawyer and/or financial advisor (for financial agreements) before signing it.

What Are the Advantages Of Mediation?

Mediation often provides a quicker, less expensive, and more satisfying resolution of the financial and child-related issues associated with divorce and separation. Resolving these issues through mediation from the beginning provides the parties with an ongoing foundation for addressing and resolving child-related issues as they arise in the future. When parents resolve issues together and maintain long-term cordial communications, children are often better able to cope with divorce and separation.

Because no one knows the issues in an individual case better than the participants, the parties, themselves, are in the best position to find solutions that best address their interests and needs. Having worked together to craft an agreement that is mutually satisfying, the parties are more likely to comply with the terms of the agreement and less likely to maintain hostile feelings toward each other and the agreement in the future.

Reasons to Use Family Mediation

There are many different reasons to use family mediation. Before getting into that it is a good idea to know a little more about what mediation is first. Family mediators are unbiased third parties who are trained to help with negotiating conflicts with families, or really any group of people who are in conflict. While they charge for these services, in many cases, they are minimal compared to lawyer’s fees. Also, lawyers are not always after what is best for the parties involved, and they really don’t care about a person’s feelings when it comes to winning a case.

Families can be in turmoil for a number of different reasons. For an example, sometimes, really more often than not, people get into conflict over what to do about their aging parents. While their parents may want to stay in their home, the kids realize that they are getting to old to live in a private residence by themselves. On one hand, one adult child may want to have them put into a care facility, while another sibling may not want that, but can’t allow them to live with them. Or, while the children feel that it is time for their parents to be put into the care of professionals, the parents, being independent, don’t want this.

Because of these conflicts, some families start to unravel. Resentments develop, and eventually it ends up in a big fat court battle, where at least one party walks away hating the other. This is where family mediation comes in. After reviewing the case, these mediators come up with options that can be beneficial. They sit down with the family, and act as a unbiased go between. They let each family member express their concerns, but they also make sure that feelings and emotions don’t get out of hand either. If the situations starts becoming to intense, they try to keep everyone calm.

This doesn’t mean mediators are uncaring, but they themselves have to keep their own feelings and emotions in check. In many cases, these mediators may have some kind of similar experiences in their own lives, and they can relate to what is going on. While not all conflicts may be resolved through a mediator, more often than not both parties walk away from the table in agreement. It could mean that instead of the parents being sent off to a care facility, in home care is provided, with the costs being split between insurance, and then equally among the adult children.

While there are many different mediation services, if you have a family conflict you want to find one that deals with these cases. You also want to find a service that has a history of resolving conflicts, and plenty of experience. Depending on your financial situation, you also need to find a service that will work with you on payments. Another factor to consider is how fast they resolve these issues, because the whole idea is to get the situation resolved in a timely manner.

Whether it is a family conflict, divorce, or business problems, if you need help and are considering going through the court system, save yourself some time and money. Using family mediation is a more healthy, as well as cheaper alternative. In many problems emotions often run so strongly, that people start to have tunnel vision, and they need an outside person to help offer solutions that the parties may not have thought of, or didn’t want to take into consideration before now.

Virtues and the Limitations of Mediation

The Process

The process for mediation will be dependent upon how mediation is triggered. Mediation can be triggered by:

a contract
a court or tribunal
an agreement to mediate.

A contract can state that when a dispute occurs to do with the contract or any matter of contractual import or bearing the parties must go to mediation. A well crafted mediation clause will provide that the parties must agree upon a mediator or in the absence of agreement the contract should provide that the matter must be referred to a nomination body to nominate a mediator.

The contact will provide that the mediator will be free to conduct the mediation as he or she sees fit, but the contract will also provide that if the mediation breaks down then the parties are at liberty to abort the mediation. Conversely the contract will provide that if resolution of the dispute through mediation is effected then the terms of settlement that underpin that accord must be in writing, must be co signed by the parties and the mediator and the accord will then be binding.

An example of a contract induced mediation clause is below

The Parties must mediate disputes.

The parties to the contract must use the mediation procedure to resolve a dispute before commencing legal proceedings.

The mediation procedure is:
The party who wishes to resolve a dispute must give a notice of dispute to the other party, and to the selected mediator, or, if that mediator is not available, to a mediator appointed by the president of the Law Institute.
The notice of dispute must state that a dispute had arisen, and state the matters in dispute.
The parties must cooperate with the mediator in an effort to give an opinion to technical matters. Each party must pay a half share of the cost of the opinion.
If the dispute is settled, the parties must sign a copy of the terms of settlement.
If the dispute is not resolved in 14 days after the mediator had been given notice, or within any extended time that the parties agreed to in writing, the mediation must cease.
Each party must pay a half share of the costs of the mediator to the mediator.

The terms of the settlement are binding on the parties and override the terms of the contract if there is any conflict.

Either party may commence legal proceedings when mediation ceases.

The terms of settlement may be tendered in evidence in any mediation or legal proceedings.

The parties agree that written statements given to the mediator or to one another and any discussions between the parties or between the parties and the mediator during the mediation period are not admissible by the recipient in any legal proceedings.

Court or Tribunal Ordered Mediation

Most courts require litigated matters to be referred to mediation before the case goes to hearing. The courts normally have a published list of mediators that the parties can choose from and each party has to pay the costs of the mediator.

If the mediation facilitates a settlement then the matter is concluded and the legal proceedings will be aborted by consent. If the mediation is unsuccessful then the matter will in all likelihood proceed to trial.

In some jurisdictions like the VCAT (Victorian Civil and Administrative Tribunal) the parties do not have to pay for the mediator and this is a significant cost saving and benefit that flows from such benevolence.

Agreement Based Mediation

Any party to any dispute, be it civil, commercial or planning can at any time agree to mediate. All the parties need to do is to find a mediator and then in good faith attempt to settle the matter.

There still however needs to be a rigour, there is little point in settling a dispute unless the settlement is agreed in writing, is witnessed and is evidenced by an instrument that states that the parties have agreed to resolve all of their disputes and differences to do with the subject matter.

Any mediated settlement agreement has to be comprehensive, well drafted and must embrace all matters that gave rise to the dispute. Poorly drafted settlement agreements are open to challenge and are frequently challenged when one of the parties in hindsight thinks that result could have been better.

The Virtues

If matters can be mediated at the gestation of a dispute, a mediated outcome has considerable merit. There is little doubt that the fastest and cheapest way to resolve a dispute if negotiations breakdown is through mediation. In any partnership agreement that I have entered into with fellow practitioners or businessman I have insisted on the inclusion of a mediation clause. Resort to court, is last resort.

Confidentiality

One of the ostensible benefits of mediation is confidentiality. If a matter is resolved by mediation the disputants can keep their issues of discontent “in house”. If there is any “dirty linen” it is “washed” in-house, never in public. For people in high office this is most important, reputations particularly in this day of age where communications via the internet are immediate and widespread mean that anything odorous can be seized upon and published very quickly. Furthermore once the odium is out there it can never be archived or placed in a vault that is dedicated to the scurrilous. Information that is published on the web remains there in perpetuity for all and sundry. The need for confidential resolution of disputes is therefore greater than ever and mediation is a useful although not necessarily perfect way of achieving this.

Not everyone however is convinced that a benefit of mediation is confidentiality.

“It could be said that the reality of confidentiality in mediation is in large part reliant on the goodwill of the parties. If good will breaks down, then somewhat ironically, whether confidentiality will be upheld or not depends on relatively insecure legal protections”

(Field, Rachael and Wood, Neal (2006) “Confidentiality: An ethical dilemma for marketing mediation?” Australasian Dispute Resolution Journal 17(2):pp. 79-87 at 7).

“From an ethical marketing perspective it is less than desirous to use the concept of confidentiality to promote mediation; certainly not without providing full information about the qualified nature of the concept in practice. Indeed, the accuracy and legitimacy of some of the assertions made about confidentiality in mediation can be brought into serious question”

(Field, Rachael and Wood, Neal (2006) “Confidentiality: An ethical dilemma for marketing mediation?” Australasian Dispute Resolution Journal 17(2):pp. 79-87 at 16).

As one of the perceived benefits of mediation is confidentiality, yet in actual practise as the said co-authors contend this may be an assumption in some instances rather than a fact, settlement condition “belts and braces” should be brought to bear to secure confidentiality. Where settlement via mediation is engineered the settlement agreement should have a confidentiality clause, any breach of which is actionable in a court of law. If part of the consideration in the settling of a dispute is confidentially it should be expressed as such, then a breach of confidentiality is a breach of that confidentiality provision and actionable.

A greater problem is if settlement is not effected by mediation. How confidential is information conveyed during negotiations in these circumstances? Field, Rachael and Wood have said the notion of whether information remains confidential or not may be reliant upon the good will of the parties. All well and good but of little comfort to disputants at loggerheads with one another, particularly if the mediation proves fruitless and as it can on occasion, counterproductive and a tension exacerbater.

Information gleaned under the ostensible auspices of confidentiality and frank exchange can be a very useful intelligence gathering exercise. One can find out a great deal about personalities, their fears, apprehensions and weaknesses in mediation. There are those who attend mediations with no interest in settling a matter, but are happy to go through the motions of the exercise to gather intelligence and insight into the level of resolve that another party may have.

Where one is encouraged under the ostensible protection of confidentiality to speak freely then this is not exactly “keeping one`s powder dry”. Rightly or wrongly some cases are won because of guile, the careful metering out of one`s better arguments and the element of surprise. This is not tantamount to a lack of ethics, it does not mean that a party withholds information or documentation that is prima facie discoverable, rather is litigation ringcraft. If one is intent on out and out victory rather than a negotiated outcome the element of surprise and keeping certain scenarios in reserve is important.

To digress a little, years ago the author had a case that had been running for eighteen months or so. The case was a reasonable one, there were some good arguable points to run, but it could have gone either way. A competent junior barrister had been retained from the outset. The other side`s barrister who likewise was relatively junior seemed to be getting the better of our fellow in mediations and interlocutory matters. When the hearing date was announced the author decided to brief a queen’s counsel. Unbeknownst to the opposing counsel, the QC was only briefed to do the opening day and the junior barrister was briefed to appear in the remainder of the case which was set down for 21 days.

The author was careful not to make mention to his adversaries that a QC had been briefed to do the opening. This was by no means mischievous as there is no ethical obligation to divulge the identity of anyone who is briefed to do the opening. It was thus assumed by the opponent`s camp that our junior counsel would turn up on day one to run the trial. So it came as a shock to the other side, when a queen’s counsel appeared as the other side assumed that the QC would run the trial to conclusion. The opposing barrister felt overawed, lost his composure and urged his client to enter into negotiations without further ado. The matter was settled on the opening day on terms that were favourable to our client.

If the author had settled the matter at mediation when the other side’s team was in “full flight” the terms of settlement would have been nowhere near as attractive as the day one of hearing scenario. As a result of being strategic, playing on an opposing advocate’s ultimate insecurities and fears the client got a very good result. Ironically the matter settled by negotiation but the mediation from our perspective was not the right forum to get the right outcome.

The Parties have Control

Another virtue is that the disputants whilst a matter is being resolved via mediation have control and input into the process. They do not have to settle, nor do they have to compromise but if they choose to do so they can do so on terms that in all of the circumstances are the most pragmatic. The word pragmatic is used rather than happy or good terms. In any settlement one of the parties will be less satisfied than the other. The popular view that mediation is “win win” is a furphy if not a nonsense. Mediation is all about dispute containment, the dousing of the fire, the determination to keep a matter out of the courts, the tribunals or arbitration, or the arresting of legal proceedings before one ends up in trial. Mediation can augment this.

It is, however, paramount that a party to mediation, through the medium of the mediator is not cajoled into a compromise or a decision that is against his/her/its best interest. Unrepresented parties at mediations can often fall foul of being pressured into settlements they will later regret, particularly if the mediator is ‘overly activistic’ for a settlement, and we usually counsel against parties representing themselves at mediations.

If one has a strong case and the respondent is financially secure and correspondingly has a weak case then the party with the strength should be ill-disposed to compromising their position. It is a bit like “gun boat” diplomacy, the party with the gun boat should not capitulate to the party with the canoe.

Anecdotally, I know of instances where mediated outcomes have occurred in circumstances where a given party gave up too much. In hindsight, more than they had to, and this leads to a fair measure of disenchantment.

Nevertheless, it has to be said that mediation has become very popular, with good reason, because settlements are better than trials and moreover as long as matters are being negotiated or mediated, parties still have control over their destiny.

Shortcomings

The key shortcoming is that with mediation there is no guarantee of outcome. Although a mediator may very quickly figure out who is in the right and who is in the wrong, he or she cannot compel the parties to settle.

A lack of accountability

“There is currently no uniform federal legislation prescribing conduct obligations for disputants and their representatives in ADR processes, and little legislation prescribing the conduct of ADR practitioners.3 This may adversely affect the value and perceived integrity of ADR” (NADRAC, “Maintaining and Enhancing the Integrity of ADR Processes, from Principles to Practice Through People”, February 2011, at page 3)

This is a serious problem, if a judge makes an error the decision can be appealed, this is also the case with arbitrators, adjudicators and tribunal decisions. Admittedly this community of judicial professionals is required to make decisions whereas a mediator is not required to make a decision. The problem however is that if a mediator does break free of his or her mandate i.e. the mandate to facilitate rather than influence settlement and in so doing if the mediator influences or forces an outcome that culminates in a material prejudice to a party then there is no redress. There is no redress because there is no decision, determination or award that is capable of being appealed.

An additional problem is that unlike judges, tribunal members or even arbitrators, mediators do not necessarily have to be in possession of any formal training. Although by and large mediators have had some training, (ordinarily a three day course) when one considers the extraordinary persuasive power that they may have, albeit by cajolement or charisma, it is troubling that there are not more robust and rigorous mediator training courses. Anyone who has a prominent office in the dispute resolution chain should be very well trained in their craft and in possession of a very serious rigour. This rigour should go beyond being a “settlement scalp hunter”.

“There are no comprehensive or uniform standards applied to mediators in Australia. While it may be undesirable to impose a unitary standard of training and accreditation on the diverse forms of mediation practice, there are strong arguments to support a unified approach to legal regulation of mediation practice in its diverse forms across Australia.”

(Robyn Carroll (2001), “Mediator Immunity in Australia”, 23
Sydney Law Review 185 at page 186).

Immunity of Mediators –

“Possibly the most fundamental argument against immunity is that it will inevitably (if infrequently) have the effect of denying access by parties to compensation or other remedies to rectify harm”.

(Robyn Carroll (2001), “Mediator Immunity in Australia”, 23
Sydney Law Review 185 at page 211)

Bobette Wolski, an Associate Professor at Bond University Queensland and a mediator states the influence a mediator can have –
“In our own culture today, entry into and participation in mediation may not be voluntary. In practice, mediators exert pressure to settle and they influence outcome. They are neither completely neutral nor impartial. The assumption “that mediators are or should be merely catalysts or that they are and should be impartial or neutral is not founded on careful and detailed examination of the actual roles and behaviours of mediators”. (P H Gulliver, Disputes and Negotiations: A Cross-cultural Perspective, Academic Press, San Diego, 1979, p 216.)
Bobette Wolski, ‘Voluntariness and Consensuality: Defining Characteristics of Mediation?’ (1996) 15 Aust Bar Rev 213 at page 4.

Mediators “[s]eek to influence the course and outcome of negotiations for a variety of reasons related to their own interests and values (P H Gulliver, Disputes and Negotiations: A Cross-cultural Perspective, Academic Press, San Diego, 1979, p 203) They become parties to the negotiations into which they enter and to some extent encourage outcomes consistent with their own ideas and interests”

(Bobette Wolski, ‘Voluntariness and Consensuality: Defining Characteristics of Mediation?’ (1996) 15 Aust Bar Rev 213 at page 5).

It may not be correct to contend that mediators are neither completely neutral nor impartial. This does not mesh with the experience of the author or his colleagues whom collectively would have attended hundreds of mediations over the last 20 years.

Where mediations are remunerated on a fifty/fifty basis there is little reason or likelihood of any conscious leaning towards a given party. Likewise if a mediator is appointed by a court or a tribunal there would be no reason for a mediator to prefer one or other of the parties. So the contention that mediators’ lack impartiality doesn’t really “wash”.

The contention that mediators try to shape outcomes that are consistent with their own ideas and interests also is interesting. The experience of the author and his colleagues who collectively have attended hundreds of mediations is that mediators are not ideological and they don’t push any ideology or philosophical preference. Our reservations are that some mediators drive too hard at settlement and on occasion have been known to terrify parties into settlement. Furthermore there are some who overstep the line and comment on the merits of a case or worst, undermine the solicitor client relationship by championing the worst case scenario rather than the likely or best case scenario.

There is little doubt that some mediators try to pressure participants into settlement and there should be an absence of pressure. At the time of writing this material one of the author`s partners after having spent a very long day at a mediation recounted that a mediator had lost his temper with a client and shouted at her.

The contention that mediators do exert influence to settle this sadly is insightful. Partners Lovegrove, Cotton and a previous partner of Lovegrove Solicitors John Perry who combined have over fifty years of experience would in some instances agree. All of the above have attended mediations where mediators have through force of personality and sometimes vociferous aggression, done their very best to compel parties to settle.

The standard intimidation line is “have your lawyers told you how much your case will cost if it goes to trial?” Invariably the answer will be “yes many times”. Another line will be “there are no guarantees of victory”, although a pithy axiomatic line, the line is at odds with the fact that in some cases there is an overwhelming likelihood of victory. The latter fact is never found in mediator parlance. There are many good litigants with very good cases but mediators are loathe to volunteer that prudent practise suggests that strong cases should be run and not compromised.

An additional shortcoming of mediation is that there is no relief for a dissatisfied party who subsequently forms the view that a settlement was engineered through forceful persuasiveness, that was brought to bear by the mediator. The author recalls that in one matter the mediator was recommending a course of action that was fraught with financial downside. If the author had endorsed that recommendation to his own client the endorsement of that recommendation would have been negligent. The author said as much to the mediator and told his client to refuse to accede to the recommendation. Furthermore the author said to the mediator “if I were to endorse your recommendation and commend it to my client, then I may as well ring up the solicitor’s liability committee, right away and give notification of a circumstance that may give rise to a claim, because it would be negligent for me to give an imprimatur to that recommendation”. The mediator was none too happy about these churlish comments. But if it were not for the resilience of the author, the client`s interests would have been compromised in no uncertain fashion.

Needless to say the mediator in question was not as troubled about the ramifications of the disquieting recommendation. Mediators unlike most professionals, be they lawyers, doctors or building practitioners do not owe well defined duties; be they fiduciary or otherwise, to one’s clients and are in the luxurious position of not being at risk of placing themselves in harm’s way. When as a result of any misconceived advice or recommendation, a loss or harm is occasioned; mediators can in theory be sued. Yet if through their ability to steer an outcome in a certain direction they do so in a culpable fashion, it seems to be very difficult to be able to seek redress against a mediator and even harder to sue.

Interestingly the National Dispute Resolution Advisory Council has recommended that there should be no immunity bestowed upon mediators. See clause 5.9.1 and 5.9.2 from their report titled ‘Maintaining and Enhancing the Integrity of ADR processes: From Principles to Practice Through People’, released in early 2011.

5.9.1 ADR practitioners conducting private ADR processes should not have the benefit of statutory immunity.

5.9.2 Private ADR practitioners conducting court-ordered ADR should not have the benefit of statutory immunity.

(National Alternative Dispute Resolution Advisory Council (NADRAC), Attorney General’s Office, ‘Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People’ (18 March 2011).

Can Mediators be Sued?

A question that is often asked in both the legal fraternity and commercial and is can mediators be sued?

“In Australia there are no known cases in which a mediator has been successfully sued”.

(Robyn Carroll (2001), “Mediator Immunity in Australia”, 23
Sydney Law Review 185 at page 192)

Mr Michael Moffitt makes the very poignant observation that there are few formal structures for assuring the quality of mediation services.

“Mediation operates with few, if any, formal structures for assuring the quality of mediation services. In the absence of formal quality control mechanisms, private lawsuits offer a theoretical vehicle for controlling mediators’ practices. In reality, however, it is extraordinarily difficult to sue a mediator successfully for her mediation conduct.”

(Michael Moffitt “Suing Mediators” Boston University Law Review, Vol. 83:147 at page148)

“Reported cases in U.S. federal courts, 3 in U.S. state courts, 4 and in the court systems of Canada, 5 Britain, 6 Australia7 and New Zealand8 include only one case in which a mediator was found liable to a party for mediation conduct.”

(Michael Moffitt “Suing Mediators” Boston University Law Review, Vol. 83:147 at page 150)

The difficulty in suing mediators is probably because it is a new addition to the dispute resolution repertoire, somewhat of a dark and evolving art. As canvassed previously mediators are not supposed to make decisions and although a mediator never makes a decision, the errant mediator in making a recommendation or proffering an opinion that affects a settlement is influencing the decision to settle. If the decision is settled and compromised on the basis of a misconceived mediator`s expressed inclination, the conduct of the mediator should be actionable at law.

Yet actionable on what basis? The duty of the mediator in not codified or regulated rather it is ill-defined and speculative As some mediators are not remunerated by the parties does their duty to the party differ to circumstances where the mediator is remunerated by the parties, (presumably on a fifty- fifty basis)?

Unlike lawyers who are required to enter into cost agreements with their clients that are regulated by solicitor conduct acts, mediators do not explicitly contract with clients to dispense impartiality, ethical reverence or detachment. So in the absence of any contractual obligation for one to sue a mediator, one would have to imply certain duties, duties that are to reiterate ill-defined and opaque.

For the above reasons it is not surprising that mediators apparently have not been sued to date. Although a party in the absence of any mediator immunity would be at liberty to sue a mediator, success could prove elusive. There would have to be compelling evidence that the mediator, very forcefully recommended a course of action, based upon flawed rationale or pretext, resulting in a settlement that materially prejudiced a party`s interests.

Furthermore if the aggrieved was represented by lawyers it would be even more difficult to sue the mediator, because the question would be asked “Why did your lawyer not advise you to refuse to accede to the mediator’s recommendation?”

The disquieting consideration for lawyers, is that the lawyer must be ever vigilant and bold if need be, in ensuring that a bad deal that is put to the client is described as such in no uncertain terms, least the lawyer be implicated in a questionable outcome. The last thing the lawyer would want to become is a client “safety net” for a compromised settlement in circumstances where a forceful or vociferous mediator extolled the virtues of settlement and the lawyer meekly acquiesced or endorsed in that facilitation. For to do so could mean that the lawyer would be sued for a failure to emphatically reject the mediator`s recommended course of action.

As an aside the author can attest to his disappointment with respect to some of his experiences at mediation, albeit a minority of experiences. One case concerned a multimillion dollar dispute where the author was retained by an insurance company and the author’s client flew an insurance instructor from one jurisdiction to the jurisdiction where the mediation occurred. The mediator was a fairly relaxed sort of character but the amount that he charged being $6,000 per day certainly did not relax the disputants. It was observed on a number of occasions that when there were “breakout” caucuses, the mediator used his downtime to read the newspapers in the public reception area that someone very kindly left in the reception of the office.

In another matter, again an insurance dispute, one team flew from one jurisdiction to another, at great cost. The mediation was getting traction but because the mediator and some other members of one of the adversary fraternity had to attend a religious festival, the mediation was cut short. The author, a religious man himself, considered that it would have been a far better idea for the mediator to arrange a date that did not conflict with either his or one of the other party’s religious commitments. Particularity when the mediator was charging in excess of $5,000 per day and the combined legal spend for the day would have been $12,000. Needless to say that the team lacking the same religious affiliation was in a word; disappointed.

One of the greatest risks with mediations is that successful mediations in the author`s experience often go well into the night. In these circumstances many mediators instead of adjourning over to the following day put pressure on the parties to expedite the “wrapping up” of a settlement. In such circumstances mistakes can be made particularly in regards to the drafting of terms of settlement. This makes one hark back to Michael Moffitt’s observation that the lack of formal structuring can compromise the quality of mediation services.

Cost impacts

Mediation is relatively cheap and in tribunals such as the VCAT and the NZ WHT it is free. Court nominated mediators however are not free and when the courts, compel the parties to mediate the parties have to engage and pay for recognized and reputable mediators. This can cost anywhere between $1,500 and $10,000 a day but is money well spent if the matter is resolved quickly by mediation.

The most cost effective deployment of a mediator is at the outset of the dispute, at a time that precedes the initiation of legal proceedings.

Time Impacts

An actual mediation rarely takes more than a day or so. The critical thing is to ensure that the mediation occurs close to the beginning of the dispute rather than on the eve of trial.

On point, the author was engaged by the Law Reform Commission and the Law Institute of Victoria in the early 90’s to co-author a plain English building contract with Jude Wallace (Jude worked with the Victorian Law Reform Commission). We decided to make mediation the first “port of call” in the dispute resolution process whereby it was a term of contract that no party could issue proceedings in any jurisdiction unless they had at first instance attended mediation. The contract also provided that the parties remunerated the mediator on a 50/50 basis, regardless of outcome.

A Key to a Successful Mediation – Hiring the Right Mediator

Whether your legal dispute involves a personal injury case, wrongful death case, insurance claim, family law, divorce, child custody, or child support case, you should strongly consider mediation to attempt to resolve your legal dispute through settlement. If you have an attorney representing you, mediation will probably be discussed during the pendency of your case. You should take a lead role in assisting your attorney during the process of selecting a qualified and experienced mediator in order to optimize your chance of successfully resolving your legal dispute.

Definition of Mediation

Mediation is an effective alternative dispute resolution method by which parties to a legal dispute agree to hire a neutral third party to serve as the mediator. The mediator’s role is to learn the facts of the case and arguments of all parties, to promote communication between the parties, and to facilitate the parties with respect to formulating a potential settlement of the legal dispute. The mediator remains neutral and should not provide legal advice to the parties.

With respect to almost every civil lawsuit filed in State Courts in Texas, Judges will order the attorneys and the parties to mediation prior to trial. However, the process is non-binding, meaning that you may choose to settle your case, or alternatively, you may choose not to settle your case and proceed with your case in Court. No one can force you to settle your case during mediation.

Whether your legal dispute involves a civil lawsuit, a dispute in which a lawsuit has yet to be filed, and whether or not you have an attorney or are representing yourself, mediation can be used to attempt to resolve the dispute with the opposing party.

Goals of Mediation

The purpose of mediation is to provide the parties a safe setting in which settlement negotiations can take place and in which a neutral third party mediator can assist the parties in exploring and facilitating potential settlement. The mediator should ensure that the parties mediate in good faith, meaning that each party agrees to engage and participate in the process.

An effective mediator should accomplish the following:

Preparation – properly prepare for the mediation by reviewing all information provided to the mediator by the parties concerning the case;
Neutrality – remain neutral at all times;
No legal advice – refrain from providing legal advice to the parties;
Understanding – ensure that all parties know and understand the process and rules of mediation;
Communication – facilitate communication and settlement negotiations between the parties; and
Settlement Agreement – draft a quality Mediated Settlement Agreement incorporating all terms of the settlement in accordance with the parties’ instructions.

Advantages of Mediation

The advantages of mediation are numerous and include the following:

Cost Savings – ends the need for continued expensive attorney’s fees, expert expenses, and costs of litigation;
Avoidance of Risk – lessens the risks for the parties in that the parties choose and formulate the terms of settlement, as opposed to leaving the decision with respect to the legal dispute to a Judge and jury;
Time Savings – can potentially resolve the legal dispute in a one day mediation session, as opposed to continued litigation which can take many months or even years.

In family law cases, divorce mediation is especially beneficial to parents with children who need to learn to negotiate and resolve disputes with each other for the best interest of the children.

Hiring a Quality Mediator

Hiring the correct mediator for your case optimizes the potential for settlement of your legal dispute. In choosing and hiring a quality mediator in your case, you should learn the background and experience of the potential mediator and consider the following:

Is the mediator a licensed attorney who has handled cases similar to your legal dispute?
What type of training does the mediator possess?
What type of reputation does the mediator have with respect to his peers?

Some quality mediators are not attorneys and not all mediations require the mediator to be an attorney to be successful in settling the case; however, it is often helpful to hire a mediator who is an attorney and has handled legal cases similar to the parties case. The benefit of hiring such an attorney as your mediator is that the attorney has knowledge and experience concerning the law and what may or may not happen with respect to legal rulings and decisions that may affect your case.

Dallas, Tx attorney and mediator Sheadyn R. Rogers represents clients for personal injury cases, wrongful death cases, family law, divorce, child custody, and serves as mediator in such cases for individual parties and attorneys. Sheadyn R. Rogers is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Rogers has practiced law for many years on both sides of the docket for Plaintiffs and Defendants, and has successfully handled numerous jury trials including obtaining multi-million dollar jury verdicts (and settlements) for Plaintiffs and defense verdicts for Defendants.

The Basics of Divorce Mediation

Mediation, with regard to the law, is a form of alternative dispute resolution. Typically, a third party, known as the mediator, will assist the parties in negotiating a settlement. Mediation can be employed in a variety of areas of law and is commonly used for family law disputes.

The term mediation broadly refers to any instance in which a third party assists others reach an agreement and makes those engaged in conflict agree on a fair result. Though mediation can be confused with legal arbitration, the two differ. In arbitration, the third party acts more like a judge, but does not participate in the discussion. In mediation, the third party participates in facilitating the discussion in order to resolve the dispute.

Mediation has a structure, timetable and dynamics that typical, more informal negotiation lacks. The mediation process is private and confidential and can even be enforced by law. While participation in mediation is typically voluntary, sometimes the court can mandate it.

The aim of mediation is to reach an agreement through the use of various techniques and to open or improve the dialogue between the parties in dispute. Because the process relies so heavily on the mediator, it is imperative that they are skilled and properly trained. Over the years, as the practice gained popularity, training programs, certifications and licensing was established to ensure trained, professional mediators that are committed to the discipline.

There are many benefits to mediation including decreased costs. While the expertise of a professional mediator may charge a fee comparable to that of an attorney, the process of mediation generally takes substantially less time than moving a case through standard legal channels. Mediation typically achieves a resolution in a matter of hours, compared to the months or even years it could take to resolve an issue in court.

Mediation also ensures confidentiality. Unlike court hearings, which are public, mediation is strictly confidential. Confidentiality in mediation is so important that in most cases, the court cannot force a mediator to testify as to the content or progress of mediation.

Mediation also increases the control the parties have over the resolution. In a court case, the control resides with the judge or jury in regard to the resolution. Mediation is more likely to produce a result that is mutually agreeable for the parties. Compliance to the agreement reached through mediation is also often high, as both parties worked together in bringing about the resolution.

Family law matters in particular can be challenging due to strong emotional ties. Mediation allows these types of disputes to be resolved with guarantee that each party will be heard and considered. Whether it is the dissolution of a marriage or the custody and support of a child, mediation is available as a meaningful alternative to litigation.

What on Earth Is Mediation?

For many businesses the costs of running their companies increase constantly and they have a need to re look at many areas to see if there are ways to reduce the overheads of the company. One area they make look at is the legal advice they receive and use. They may work with their legal advisors to help them with bad debts or other more complex problems that have occurred. Taking any issues or problems to court can become very expensive and time-consuming and in the light of this lawyers now provide a service of mediation that in many cases is preferable to taking the matter through the many months of the court system.

Mediation or facilitated negotiation is the term used for talking to all the parties involved about whatever problem has occurred and finding a solution that is satisfactory to all concerned eliminating the need for court proceedings.

The mediator will not have a set way of working, there is more than one way of handling mediation cases, and the mediator may choose to meet each side involved in the issue separately and on another case may meet them altogether. The mediator will familiarise himself with all the details of the issue and how both sides see the what is involved. The mediator with be able to assess areas where some element of compromise may be made and discuss these accordingly with all concerned. He will ascertain just what each side wishes to achieve out of the discussions and only when he thinks it appropriate will he bring both parties together to try to find mutual agreement having first discussed the possibility of some compromise on each side.

The mediator will record the details of all the meetings and armed with this he will try to facilitate an agreement between the parties. When the situation arrives at both parties finding a solution that is acceptable to them then the mediator will make a record of the discussions and get both parties to sign that agreement. It is only after the agreement has been signed by both parties that the agreement is binding.

Using the services of a fully trained mediator is a very acceptable way of trying to solve a situation that has happened. It can often be the chosen way to all parties involved as a preferred method of handling a problem and avoid the costly and long arduous months often involved in court proceedings.