Kemp Klein

Tag: Joseph Buttiglieri

Resolving Conflict Outside of Court

 

ALTERNATIVE DISPUTE RESOLUTION

The high cost of litigation and number of cases flooding the courts have many judges and attorneys using alternative dispute resolution (ADR) to significantly cut costs and improve the efficiency of the court system. Clients whose cases qualify for this process often find it simpler and easier than facing off in the courtroom.

In Brief

  • In general, ADR involves a mediator, arbitrator, or panel of attorneys depending on the type of ADR chosen, who assists the parties in developing their own outcome to their unique disputes.
  • Mediation offers the opportunity for both parties to tell their side of the story in an informal and conversational setting as opposed to an exchange of testimonies in court.
  • Arbitration is submission of a dispute to one or more impartial persons for a final and binding determination.

Ch 1: Resolving Conflict Outside of Court

The high cost of litigation and number of cases flooding the courts have many judges and attorneys using alternative dispute resolution (ADR) to significantly cut costs and improve the efficiency of the court system. Clients whose cases qualify for this process often find it simpler and easier than facing off in the courtroom.

What are the benefits of Alternative Dispute Resolution?

Alternative dispute resolution is an appealing option because it can be applied to virtually any type of civil case. In general, ADR involves a mediator, arbitrator, or panel of attorneys depending on the type of ADR chosen, who assists the parties in developing their own outcome to their unique disputes. Once in the courtroom, parties surrender control over the outcome to the judge who ultimately decides the case.

Source: State of Michigan

Reasons to settle disputes outside of court

Aside from the obvious reduction in cost, there are three main reasons ADR is more appealing than the formal litigation process. First, all types of ADR give the parties greater control over the procedure and outcome of their dispute than they would have in a courtroom. Next, in any type of ADR, parties have the freedom to add issues to their dispute when they arise as opposed to the courtroom where parties are tied to the issues stated in their initial pleading. Last, ADR provides the parties with privacy that they would not have if their case were to be heard in court. The courtroom is generally open to the public, meaning anyone can walk into the courtroom and hear every detail of your case. Additionally, any papers that are filed with the court are also open to anyone upon request.

There are several types of ADR. Two of the most commonly used types are mediation and arbitration. I will discuss the details and benefits of each in the following articles with relevant input from Joseph P. Buttiglieri, an attorney with 46 years of experience, 10 of which he has served as a certified mediator. In the meantime, if you are contemplating whether to address a legal issue but don’t want to drag it through the courts, contact us. We can provide information and options to help you move forward.

Ch 2: Mediation, An Informal Alternative 

When a dispute arises, whether it be between family members, business partners, landlords and tenants, etc., some are hesitant to pursue court action for a number of reasons with the leading reason being the significant cost of litigation. The mediation process provides parties with an alternative route for conflict resolution that is more cost and time efficient, generally less confrontational, and gives all parties, through the facilitation of the mediator, more control over the final outcome than they would have in court through litigation.

What is mediation?

Mediation is a confidential process where individuals in conflict have the opportunity to be heard, share their ideas for resolution, negotiate such ideas with one another, and come to an agreement that leads to a mutually acceptable resolution. Mediation offers the opportunity for both parties to tell their side of the story in an informal and conversational setting as opposed to an exchange of testimonies in court. A mediator takes on a different role than a judge who makes decisions on behalf of the parties. A mediator assists the parties in communicating their desired outcome to one another, offers suggestions when needed or requested, identifies issues together with the parties, and works with all sides to resolve the identified issues. Mediation allows the parties to have a great deal of influence and control over the decision-making process that leads to the final outcome of their case. In litigation, control over the decision making process is surrendered to the judge who ultimately decides the case in a manner that may leave all parties dissatisfied.

Common misconceptions regarding mediation

A common assumption is that mediation is only available in divorce or family law cases. However, any type of civil dispute can be resolved by mediation. The freedom the parties have in choosing their mediator supports the wide applicability of mediation to virtually any kind of dispute. The parties are able to jointly choose a mediator who is experienced in the specific area of law that their dispute involves and can therefore provide meaningful advice and suggestions in order to reach an outcome that is specifically tailored to the parties’ unique issues. Additionally, because mediation leaves the bulk of the decision making to the parties, who know their case better than any judge would, mediation becomes an appealing option no matter the type of case, as the parties can collectively design their own outcome. Nearly any type of dispute that parties want resolved quickly and inexpensively can be submitted to mediation.

Many people also believe that if parties decide to mediate their case, litigation ceases to be an option. If mediation isn’t progressing in a way that the parties want, the parties can choose to end mediation and bring some or all of the unresolved issues to court for a judge to decide. With this in mind, mediation can be used to consolidate issues before initiating court proceedings as a way to save litigation costs by only bringing the unresolved issues to court. The litigation route also provides a failsafe of sorts for parties in mediation that cannot communicate effectively, despite the assistance of the mediator, and consequently suffer a breakdown in that communication resulting in an unsuccessful mediation. If such a breakdown occurs, the parties can resolve their dispute through formal litigation.

Source: State of Michigan

Benefits of mediation

Cost: A primary benefit of mediation compared to litigation is the difference in cost. The litigation process is complex and burdened by procedure that increases attorney fees and costs significantly as attorneys are required to prepare and file documents with the court such as motions, briefs, petitions, responses, etc., attend various court hearings, and go through a lengthy cost-consuming discovery process. In choosing mediation, parties cut the increased costs that litigation often requires. First, the entire mediation process is usually done in one or two full day sessions, depending on the parties’ needs, as opposed to litigation proceedings that can last for months or even years. This almost always reduces costs in addition to saving time. Second, Parties are able to choose their own mediators so they will know that the mediator’s hourly rate immediately and can better gauge how much mediation will cost from the outset. Third and finally, each party submits a mediation summary that gives the mediator the context of the parties’ respective issues. Filing one mediation summary as opposed to the numerous pleadings that are normally filed in litigation proceedings, is itself an enormous reduction in cost.

Maintaining Relationships: If preserving the relationship amongst the parties is a goal, mediation will most likely provide a better outcome than litigation would. According to Joseph P. Buttiglieri, “Mediation is a gentler, less confrontational approach to resolving conflict as opposed to litigation.” In any case, mediation provides better prospects for repairing the relationship between parties as they are free to work together to resolve their issues. In any case, mediation provides better prospects for repairing the relationship between parties as they are free to work together to resolve their issues.

Flexibility: Mediation is less constricting with regard to bringing up new issues. In litigation, the parties are bound by the issues set forth in the pleadings and are restricted from arguing any other issues not in the pleadings. In mediation, parties are free to bring any issues and bring-up new issues as mediation unfolds that can then be addressed and resolved in the same mediation session.

If you have questions about the mediation process or alternative dispute resolution in general, contact us. We can discuss the various options available to you concerning the specifics of your dispute and can offer suggestions for the efficient and effective resolution of your case.

Source: State of Michigan

Ch 3: Arbitration, A Formal Alternative

Arbitration is submission of a dispute to one or more impartial persons for a final and binding determination. In comparison to mediation and litigation, arbitration sits in the middle as being a more formal process than mediation but still less formal than litigation.

Differences between arbitration and mediation

In most cases the courts can mandate mediation. Arbitration, however, can only be mandated by the court if the parties enter into a contract that mandates arbitration. If no contract exists between the parties, the parties themselves can choose to arbitrate their dispute, but a court cannot mandate it.

The roles of the arbitrator and mediator are very different. An arbitrator has the power to render a binding decision in the case at hand. The arbitrator effectively replaces the judge or jury as the decision-maker. A mediator, however, works cooperatively with the parties and their suggestions as to resolution can be either accepted or rejected by either party.

The roles of the arbitrator and mediator in the discovery process also differ significantly. In mediation, the mediator obtains information by, first, the mediation summary that each party to the dispute submits which briefly outlines their argument and lays out the basic facts of the case. At mediation, the mediator conferences with each party separately to obtain more information. Arbitration on the other hand, is first controlled by the contract between the parties if one exists.  The arbitration provision(s) in the contract can guide the arbitrator as to what types and quantity of discovery is permissible. If the contract is silent or no contract exists, the parties can meet with the arbitrator prior to the initial hearing in a case, and orally agree as to the discovery parameters they would like to follow. There are also governing arbitration rules that exist to serve as a guide to both arbitrators and parties when forming their discovery agreement.

Common misconceptions regarding arbitration

One of the most common misconceptions concerning arbitration is that decisions from a lawsuit through the litigation route are more enforceable than arbitration awards. Although arbitration awards occur outside the courtroom, they are still enforceable in a judicial forum. Federal and state arbitration acts require courts to not only recognize, but enforce arbitration awards, even if entered in different states. Additionally, because Treaties require foreign courts to enforce arbitration awards entered in another country, the arbitration awards can be as effective as a civil judgment when it comes time to enforce such awards.

Another misconception that many have concerning arbitration is the cost of arbitration. As discovery proceedings can sometimes mirror discovery in litigation, some people think that arbitration is much more costly than mediation and on par with the cost of litigation. The cost of arbitration, however, is very similar to the cost of mediation in that both sides pay for their own counsel and they each usually share an equal amount in cost for the arbitrator. Additionally, although discovery can be costly, the freedom to set up the discovery parameters by the parties and arbitrator can cut the cost of discovery making it at times, much less than the discovery cost in litigation.

Benefits of arbitration as an alternative to litigation

Efficiency: In comparison to litigation, the resolution of a dispute can happen much sooner through arbitration. Litigation in some cases may take several years to resolve where in contrast, an arbitration award can be reached within months of the start of the arbitration process. Arbitration is also more cost-efficient than litigation. Aside from the lower discovery costs explained above, arbitrators, like mediators, usually bill by the hour or day at similar rates charged by attorneys. This significantly reduces the costs when compared to the cost of litigating a case or dispute. Additionally, because resolution of a dispute generally happens sooner in arbitration than litigation, the attorney fees are significantly reduced. Even though the courts only charge filing fees, litigation can still be more expensive due to scheduling issues, time and cost involved in the attorneys traveling to the courthouse, and the high amount of pleading filed in any given case. Issues that are raised in arbitration proceedings can be communicated to the arbitrator through a phone conference, email correspondence, or a letter, all of which have no filing fees associated with them.

Privacy: Arbitration proceedings occur in private unlike trials in court which are open to the general public. Any information discovered and used in arbitration proceedings can be kept confidential. Hearings before the arbitrator and the final resolution or award can also be kept private and are just between the parties and the arbitrator. In a trial, the general public is able to access information in the case and attend hearings.

Less Complex: The admittance of evidence is generally simpler in arbitration than the complex process that exists in litigation. The normal rules of evidence used in court proceedings have limited applicability in arbitration proceedings as the arbitrator has broad power to decide what evidence is allowed. Additionally, the lengthy and complex process of discovery in litigation is generally bypassed in arbitration as the parties together with the arbitrator generally decide the process for discovery.

Finality: Because the arbitrator effectively replaces the judge and jury as the decision-maker, it severely limits the parties’ right to appeal the award. In contrast, a court’s decision in a case can be subject to appeals that can add months if not years to the final resolution of your case. The binding decision of the arbitrator gives the parties in dispute finality as to the issues they raised during arbitration as the decision or award is rarely appealable.

If you have questions about the arbitration process or alternative dispute resolution in general, contact us. We can discuss options that will help your case move forward in the most efficient and effective way possible.

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Message from Brian H. Rolfe – Fall 2022

 

A Message from Brian H. Rolfe

The past few months have reminded me of what a wonderful group of people we have that work at and are associated with Kemp Klein. Our first charity golf outing was a resounding success with special thanks and gratitude to our clients, friends, and vendors as well as hardworking Kemp Klein team members. In addition to their efforts at the golf outing, our attorneys and staff have been out in the community doing a variety of interesting and impactful things. Whether they’re donating meals, writing books, supporting a national stage production, or winning top awards, these folks make us all proud to be part of the Kemp Klein team.

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Eighteen Kemp Klein Attorneys named 2023 Best Lawyers in America

 

Eighteen of the firm’s lawyers have been included in the 2023 edition of Best Lawyers in America®

William B. Acker – Litigation and Controversy – Tax, Real Estate Law, Tax Law, and Trusts & Estates

C. Leslie Banas – Corporate Law and Real Estate Law

Cynthia E. Brazzil – Corporate Law

Richard C. Bruder – Closely Held Companies and Family Businesses Law

Joseph P. Buttiglieri – Litigation – Trusts & Estates

Ralph A. Castelli, Jr. – Corporate Law and Real Estate Law

Mark R. Filipp – Litigation – Labor and Employment

Brian R. Jenney – Elder Law and Trusts & Estates

David D. Marsh – Real Estate Law

Alan A. May – Litigation – Trusts & Estates and Trusts & Estates

Norman D. Orr – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law and Corporate Law

Thomas C. Rauch – Real Estate Law

Brian H. Rolfe – Commercial Litigation

Stuart Sinai – Securities Regulation

Amy A. Stawski – Family Law

Thomas V. Trainer – Elder Law and Trusts & Estates

Michael D. Umphrey – Business Organizations (including LLCs and Partnerships) and Trusts & Estates

Robert S. Zawideh – Arbitration and Litigation – Trusts & Estates

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Message from Brian H. Rolfe – Summer 2022

 

A Message from Brian H. Rolfe

I hope everyone is having a safe and relaxing summer. As usual, it has been busy around the Kemp Klein offices. Please help me welcome two attorneys who joined the firm this month: William E. Haines II and Neal Nusholtz. I would also like to congratulate Joseph P. Buttiglieri, Alan A. May and Ron Nixon on their recent court victories and accomplishments.
 
In this issue of the Commentator, we highlight our Alternative Dispute Resolution practice. This area of the law continues to heat up as clients increasingly choose to manage disputes outside of court. Our mediators are highly skilled and have excellent reputations in the courtroom setting as well as the ADR arena.
 
There are many great things happening at Kemp Klein this summer and we plan to continue this momentum throughout the rest of the year.

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Buttiglieri and Nahhat Win Jury Verdict in Trust Contest

 

Buttiglieri and Nahhat Win Jury Verdict in Trust Contest

Kemp Klein attorneys Joseph P. Buttiglieri and Edward Nahhat recently won a jury’s verdict affirming a contested Trust Amendment. Shortly before his death, the Decedent amended his Trust – substantially reducing the share of one of his children, who previously was to receive one-third of the Trust assets. The decedent had a difficult relationship with his son, so he decided to favor his two daughters in the amendment, and allocate to them the great bulk of his estate. While he was a seriously ill widower, there was no allegation that the Decedent was mentally incapacitated, only that he had been allegedly “unduly influenced” by the two daughters to change his Trust near the end of his life.

Testimony from various witnesses and documents were presented over a three-day jury trial before seven jurors. After the close of the case and final arguments, the jury determined that the Decedent’s Trust was valid, declining to find undue influence, and sustaining the surviving daughters’ unequal benefit.

The Trust and the amendments were not drafted by Kemp Klein. Unfortunately, when the last Amendment was signed, the scrivener attorney did not ask one of the daughters (who was named as Trustee and beneficiary) to leave the room while the document was reviewed and the Decedent signed it. Also, the lawyer apparently was unable to bring a second witness to the signing appointment in the decedent’s home, so the attorney was the only disinterested live witness to the execution. These signing anomalies were factors in sending the case to jury. One key fact elicited at trial appears to have been the decedent’s decision to visit with a priest the day before he amended his trust for the last time.

Kemp Klein attorneys are always very careful in planning the execution of instruments in such a way to reduce potential challenges to those documents. This not only includes making sure that beneficiaries of the Trust and/or Will are not present at the execution – but that appropriate witnesses are available and, if necessary, that a medical examination of the client is conducted to assure not only their competence, but that the testator is not being unduly influence by anyone. While we try to make sure that our clients do not face litigation, it sometimes happens. Kemp Klein stands ready with an experienced litigation team to successfully represent clients in Trust, Will and all other contested Probate litigation.

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