ADR–Bringing Two Sides Together
While primarily focused on commercial matters, we assist individual clients resolve disputes, including matrimonial and partnership matters that involve complex executive compensation and business assets. We also represent individuals who require separate counsel in connection with an investigation into corporate wrongdoing, or who have been wrongfully terminated by their employer.
CONFLICT PREVENTION & RESOLUTION IN BUSINESS DISPUTES -- “an ounce of prevention is worth a pound of cure.”Conflict Prevention At the core of most business disputes are misunderstandings affecting one or both parties' economic interests. Misunderstandings often arise because the parties did not anticipate a potential source of conflict, or did not establish clear contract terms at the start of the relationship. Our role as legal advisors is to help you identify and plan for risks and uncertainties, and to draft a contract that you and your partner, client or vendor understand and can fulfill. Applying the lessons learned from previous conflicts, we are available to recommend modifications to your contracts, employment agreements, or purchase orders. We will also review your company policies and internal procedures to address the potential root causes of the conflict and to incorporate alternative dispute resolution (ADR) principles into your daily business practices. That is the art and the science of conflict prevention. Unfortunately, sometimes a business relationship is damaged by the acts, intentional or not, of one party, or both, the interference of third parties or events out of your control. Good contract drafting can only go so far before you realize that you and your partner are in unchartered waters. If you do not agree on how to address a situation, a good discussion may suffice; but in matters that affect your financial position, or even your viability as a business, you should consult counsel to evaluate your options. Conflict Resolution—ADR Options If your contract specifies a dispute resolution mechanism, we will assist you from the initiation of the proceeding to its conclusion. If you do not have such a contract clause, we may suggest a voluntary process, depending on your goals and situation. Do you want to end the relationship? Do you wish to preserve it, but under modified arrangements? Do you believe you are entitled to monetary damages or do you want your partner to fulfill the terms of the contract as written? Answering these questions will help us advise you concerning your options, and their likely impact on business and your reputation. For more information on neutral services, including mediation and arbitration, please go to our Commercial Arbitration page. Complimentary Initial Consultation At our initial complimentary consultation, we will discuss on a preliminary basis the strengths and weakness of your legal position, and advise you whether you would be better served by retaining a litigation firm. We may, under certain circumstances, serve as co-counsel, but only if this helps minimize your costs. And if you are already embroiled in litigation, we are available to serve as settlement counsel. In this role, we will work with your litigation lawyers to assess possible avenues to resolve your dispute without going to trial, and help negotiate a settlement agreement.
Arbitration is a cost-effective alternative to litigation. Parties may agree, voluntarily, or may be required by contract or pursuant to an applicable statute, to submit their dispute to an arbitrator. If not specified in their contract, parties select an ADR organization, with specific rules and procedures that detail the steps in the resolution process and ensure that all parties are treated fairly and equitably.
Once an arbitrator or panel of three arbitrators is selected by the parties, the dispute is submitted for consideration and a decision, known as an "award." Depending on the type of dispute, and the amount in controversy, the arbitrators may conduct hearings—much like a trial; parties may call witnesses, present evidence and argue the merits of their case. Alternatively, the parties may agree to an award based on written submissions alone. In either case, awards are made in writing, are generally final and binding on the parties, and are enforceable in court, with very limited grounds for appeal (gross injustice, collusion or fraud in the process).
What Is Mediation?
Mediation is quite different from arbitration. Unlike arbitration, it does not involve an adversarial hearing, and there is no decision-maker to issue an award. Instead, the parties are assisted by a neutral facilitator to help the parties reach a voluntary resolution.
Mediation may be formal or informal, and may be used by the parties to narrow the issues that are ultimately submitted to an arbitrator or to a court.
Our Role As Counsel Or Neutral
We encourage our clients to resolve disputes without resorting to litigation and will serve as counsel in various types of ADR proceedings.
Alternatively, Maura Smith will serve as a neutral. She is a Panel Member of the American Arbitration Association (AAA), a not-for-profit organization founded in 1926. The AAA offers a wide range of arbitration services; its panel of arbitrators includes more than 7,000 individuals located around the world who have been screened through a rigorous selection process and undergo continuous training. Arbitrators’ conduct is guided by the AAA’s Code of Ethics for Arbitrators in Commercial Disputes. Please go the AAA website for further information at www.ADR.org.
We serve as settlement counsel in a variety of disputes, including:
- Insurance coverage
- Breach of contract
- Environmental exposure, property damage and personal injury
- Product safety, recall and liability
- Employment discrimination and wrongful termination
CONFLICT PREVENTION & RESOLUTION IN MATRIMONIAL MATTERS
Utilizing alternative dispute resolution tools and a collaborative law approach, we assist clients seeking a non-litigated restructuring of indebtedness, the division of partnership interests and assets, or an equitable distribution of martial assets, executive compensation, benefits and retirement plans.
Today, couples, married or not, enter into business relationships, invest together, own assets jointly, and incur joint debts. Those who prepare wisely—with well-drafted pre-nuptial or partnership agreements—can often avoid the extraordinary expense and perhaps reduce the heartache of unwinding their relationships. Too often, couples typically do not want to discuss “exit” conditions, and, consequently, become embroiled in bitter disputes concerning their legal and financial affairs if they decide to end the relationship. Our role as legal advisers is to help you identify and plan for risks and uncertainties, and to draft a pre-nuptial or partnership agreement that you and your partner understand. We will work with your tax, insurance and financial advisers, as well as estate planning lawyers, to ensure that you have a comprehensive agreement.
Conflict Resolution—Collaborative Divorce Option
If you are planning to end your relationship or partnership, with or without a pre-existing agreement, you will need legal advice. If the primary issues are financial in nature, a collaborative process may be suitable. More and more lawyers are offering collaborative divorce services, and there are numerous divorce mediation specialists and services. In the collaborative processes, both parties are represented by counsel, but you will likely avoid expensive and time-consuming motion practice and depositions, and will instead focus on achieving an equitable financial settlement.
In some situations, you may start the process agreeing to a collaborative approach, but property division issues become clouded by feelings of betrayal, concerns about long-term financial security, or disputes about the children and your parental rights. In these situations, we may recommend that you retain a matrimonial firm. Depending on the length of our attorney-client relationship, we may continue as co-counsel and continue to focus on financial settlement issues, especially if there are complex compensation and retirement benefit issues. We also work with certified divorce financial planners who help illustrate the various scenarios you are likely to face, post-divorce, and recommend including certain provisions in your settlement agreement to take account of risks and uncertainties.
Our services are particularly well-suited for clients who are in their fifties or older, and who are contemplating divorce. We offer comprehensive legal advice, focused on a collaborative process that includes the retention of appropriate legal and financial advisers, and working with grown children or relatives if appropriate, to assist you in planning for retirement, health issues, diminished capacity and the challenges of living alone.
Complimentary Initial Consultation
At our initial complimentary consultation, we will advise you whether you would be better served by retaining an experienced matrimonial firm. We will take into consideration a number of factors, such as length of your marriage, and your respective financial positions. A collaborative process may be more appropriate if you are both employed, and your earnings are relatively equal, than if one party has income and the other has been financially dependent during the marriage. If temporary or permanent maintenance (alimony), child support and/or custody are likely to be contested, you will be better served by retaining as your primary counsel a matrimonial firm experienced in litigation.